Anti-trans protest at school soccer game goes to First Circuit

BOSTON (CN) — Parents who were ejected from a high-school girls’ soccer game for wearing wristbands opposing transgender athletes in girls’ sports told the First Circuit on Wednesday this violated their First Amendment rights — and while the judges were sympathetic at oral argument, they also worried about how to create a rule that wouldn’t cause school athletic events to devolve into rowdy political rallies.

New Hampshire enacted a law in the summer of 2024 barring athletes who were assigned male at birth from girls’ sports, but a court blocked the law in September of that year. A week later, a trans girl (one of the plaintiffs who had sought the injunction) played for the away team in a varsity girls’ soccer game at Bow High School. Several Bow parents wore pink wristbands with “XX” on them, suggesting female chromosomes.

The Bow High School principal and athletic director ordered the parents removed, threatening to cancel the game if they stayed, and the parents were later served with no-trespass orders barring them from school property.

The principal stated that the XX wristbands were a “hateful symbol.” The superintendent explained the wristbands were “exclusionary,” as opposed to “inclusionary” symbols that are allowed at school events such as Pride flags. The school has also allowed Harris-Walz bumper stickers and messages about global warming.

The parents sued, claiming “viewpoint discrimination” in violation of the First Amendment. However, a federal judge denied a preliminary injunction, finding that the XX symbol “can reasonably be understood as directly assaulting those who identify as transgender women.”

On appeal, the school’s lawyer, Jonathan Shirley of Cullen Collimore in Nashua, New Hampshire, argued the school was acting to avoid a disruption of the game — but he ran into an immediate buzzsaw.

“What actually happened was not disruptive,” noted U.S. Circuit Judge Sandra Lynch. “So what’s your next argument?”

“The disruption was the refusal to take off the wristbands,” Shirley ventured.

“And if that was unconstitutional, then you have a problem,” Lynch told him. “Why can’t they just wear wristbands? What’s wrong with that?”

Shirley shifted gears and argued the school’s policy was viewpoint-neutral because it prohibited anyone from protesting a player’s right to be in the game, regardless of the reason.

“You can’t allow that message,” Shirley said. “You don’t get to protest the right of players to play the game. The right of a player to be there cannot be questioned.”

But U.S. Circuit Judge Julie Rikelman wasn’t sure that was viewpoint-neutral. “So you can have a message that a player can be there, but not that he can’t be there?” she asked.

And U.S. Circuit Judge Jeffrey Howard posited the wristbands could be understood not as saying that a player shouldn’t be on the field, but that a different player who was displaced should be on the field instead. He said the message could be “we support the other player.”

When the parents’ lawyer took the lectern, however, the judges grilled him on how to allow protests without turning kids’ sporting events into raucous demonstrations about larger political issues.

“A school can take steps to avoid distractions and disruptions at school sporting events,” Rikelman, a Joe Biden appointee, noted. “School districts are allowed to make predictive judgments and we have to defer to that.”

Endel Kolde of the Institute for Free Speech in Washington, D.C. responded that “an overly deferential standard for adults in a limited public forum allows school officials to say ex post that ‘We were concerned about disruption.’ It becomes a get-out-of-jail-free card for viewpoint discrimination. The school said that it would ban the wristbands even if a trans person wasn’t present. This was about the message expressed, not about disruption or preventing harm to students.”

Lynch, a Bill Clinton appointee, told Kolde that “you don’t quite get off the hook, because they say we have transgender students in our schools and transgender employees. A message of disparagement is something we don’t want addressed to them.”

But XX “is not a disparaging message,” Kolde insisted. “If this is allowed, people will complain and say ‘I feel harassed’ when they just disagree, and there will be much more censorship.”

““You’re right to worry about a disparagement standard,” Rikelman said, but pressed Kolde to define the point at which a school could shut things down.

“If there’s actual disruption, a school can act,” said Kolde. “We’re not asking for a noisy disruptive protest. If other parents want to wear a pro-trans wristband, we’re fine with that. I’d be happy to represent those parents as well.”

Kolde said disruption could be defined as acting “in a way that most people would recognize as disruptive.”

Howard, a George W. Bush appointee, asked what would happen if a parent wore a gang symbol, a KKK T-shirt or a swastika. Kolde said that that would be a tougher case but the First Amendment still applied.

“If the school has a history of gang violence, that might tip the balance,” he said. “But an XX wristband isn’t the equivalent of a swastika. It’s the majority view.”

Kolde argued the school officials in this case weren’t trying to prevent disruption and were simply upset because parents were criticizing their opinions. “But it’s the birthright of every American is to criticize government officials,” he told the court.