11 hours Ago
Plaintiffs in a First Amendment lawsuit filed against the Bow School District argued in federal court Thursday that their rights were violated when they were barred from school grounds following a silent protest of a transgender athlete playing in a girls soccer game in September. Attorneys from the Institute for Free Speech and attorney Richard J. Lehmann filed the lawsuit in U.
S. District Court in Concord in September on behalf of Kyle Fellers, Anthony “Andy” Foote, Nicole Foote and Eldon Rash. The suit names Bow school administrators — including Superintendent Marcy Kelley, Principal Matt Fisk and Athletic Director Mike Desilets — and soccer referee Steve Rossetti.
The lawsuit alleges that the defendants violated the plaintiffs’ First Amendment rights by banning them from school grounds and events for wearing pink wristbands with “XX” symbols — a nod to the female chromosome structure — as a form of silent protest during a Bow High School girls soccer game against Plymouth on Sept. 17. According to court filings, the plaintiffs wore the wristbands in protest of a policy allowing a transgender athlete identified in court paperwork as a “biological male” to play on the Plymouth girls team.
Two of the plaintiffs, Andy Foote and Fellers, took the stand in Thursday’s 7-hour preliminary hearing on their motion for injunctive relief. Judge Steven McAuliffe quickly determined the relief sought in the motion is not moot. Attorneys for the school district had argued that because the soccer season is over and the ‘No Trespass’ orders issued to the plaintiffs have expired, “there is no longer a plausible argument that plaintiffs are facing an immediate threat of irreparable harm.
” Attorney Endel Kolde of the Institute for Free Speech displays the pink armband his clients wore to protest transgender athletes playing on girls teams in this photo from October. Endel Kolde said his clients intend to continue wearing their wristbands at other school extracurricular events, such as swim meets and cross country meets, during this school year and in future school years. School officials in Bow say wearing the armbands violates district policy and amounts to harassment of transgender students.
McAuliffe asked attorney Brian Cullen, representing the school district, if his clients would issue sanctions if the plaintiffs engage in silent protests at future school events, such as girls basketball games this winter. “Wearing XX wristbands, we believe it violates school policy and doesn’t comply with Title IX,” said Cullen. “The school’s position is if they come to games with the bands, we will ask them to take (them) off.
” “They call what my clients did as harassment,” Kolde responded. “We don’t call it harassment. We call this legal passive speech.
” McAuliffe said the issue isn’t moot, and the hearing on the injunction request began. Questioning of both Fellers and Foote centered on the reasons behind their silent protest, with both men testifying they wear the wristbands in support of women’s causes. Cullen, the district's attorney, highlighted an email from Fellers to Superintendent Kelley dated Aug.
1, which referred to gender inclusion policies as rules written to “appease a mentally ill cult.” “A cult in my mind is a group of individuals who quash any type of dissent on their beliefs. I have the right to believe they are biological males,” Fellers wrote.
Cullen also highlighted an Aug. 23 email from Foote to the Bow girls varsity coach, Jay Vogt, as an example of why district officials feel the wristbands represent an anti-transgender message. “No one other than the United States transgender mob supports boys playing on girls’ sports teams,” Foote wrote in the email to Vogt.
McAuliffe asked Foote directly if he agreed transgender athletes might see a pink wristband with XX on it as being directed at them in a negative way. “I don’t think that way,” Foote said. “It’s about the safety of females in female sports.
” The motion hearing will resume Friday morning in federal court, with testimony expected to last into the afternoon hours. At the conclusion of the motion hearing, the court will consult with counsel to set a pretrial schedule, including a date for a bench trial. pfeely@unionleader.
com.
