Female-only sports symbol 'XX' gets boost as appeals court rejects school district's censorship

The federal appeals court for most of New England has reliably protected gender ideology in public schools, letting a district censor a student for passively affirming the sexual binary and shielding districts from accountability for secretly transitioning gender-confused students even when their policies require parental involvement or officials to lie to parents.

The 1st U.S. Circuit Court of Appeals, which had no active judges nominated by GOP presidents until last November, finally found behavior it will not tolerate from public schools in their enforcement of gender ideology, in perhaps the first domino to fall in First Amendment challenges to censorship of gender-critical views.

New Hampshire's Bow School District likely practiced unconstitutional viewpoint discrimination against parents and a grandparent by ejecting them from a girls' soccer game for refusing to remove "XX" wristbands to silently protest the opposing team's male player, a three-judge panel ruled Wednesday, nearly 10 months after oral argument.

It threatened to arrest Anthony Foote, Eldon Rash and Kyle Fellers – sending a law enforcement officer after Fellers to leave school grounds – and issued no-trespass orders against the fathers despite their passive display causing no disruption or even being noticed by the players, including "transgender athlete" Parker Tirrell, the panel emphasized.

The judges rejected Superintendent Marcy Kelley's argument that wearing an XX wristband was "intimidating, threatening, harassing, and discouraging" to Tirrell, who had successfully sued to compete in girls' sports under a federal court's preliminary injunction exempting Tirrell from The Free State's law against males in female sports.

While they wore the wristbands to the Sept. 17, 2024, game "because of Tirrell being a player, the record does not contain evidence of appellants engaging in harassment," President Clinton-nominated Judge Sandra Lynch wrote. "To the contrary, appellants did not shout, chant, make threats, or aggressively gesture at Tirrell to communicate their views."

The Institute for Free Speech, which represents Foote, Rash and Fellers, emphasized the court concluded that a district "cannot favor one side of a debate involving parental speech on an issue of prominent public concern, and which, in those parents' views, concerned the safety of their children."

Superintendent Kelley did not answer Just the News queries.

Judging 'harassment' at WNBA games in publicly funded arenas

The ruling, and particularly its high bar for "harassment," could inform threatened litigation against the WNBA and publicly financed arenas for squelching displays of the sexual binary and gender-critical statements, as the league equivocates over whether its collective bargaining agreement excludes males by limiting competition to "women," undefined.

Though the league apologized for censoring fans who wore XX-XY Athletics gear at an Indiana Fever-Atlanta Dream game to support gender-critical Fever sharpshooter Sophie Cunningham, Chicago Sky owner Michael Alter defended his ejection of former NBA player Enes Kanter Freedom, who at a recent Fever-Sky game was wearing a shirt that defines "woman."

The Sky play at Wintrust Arena, which was half-funded with taxpayer dollars, subjecting it to First Amendment obligations under the legal theories advanced by the Alliance Defending Freedom in its warning letter to WNBA Commissioner Cathy Engelbert.

Attending as a fan courtside, Freedom posed a threat comparable to "shooting a gun" in his interaction with Sky player Natasha Cloud, Alter told local media Tuesday, the Chicago Tribune reported. "Certain threats don't get warnings" before ejections, he said.

Video shows Cloud crossing the court to berate Freedom, one of two NBA veterans reportedly denied eligibility for the WNBA draft without reference to the CBA, and Freedom taking a step onto the court as Cloud neared him. The Tribune said Alter confronted Freedom, "visibly instructing him to leave the vicinity and encouraging security to intervene."

Alter claimed unnamed "people sitting near" Freedom said he initiated by trash-talking Cloud, but a named witness next to Freedom said "he didn’t do a thing" to provoke Cloud's profane tirade. The Sky owner passed the buck to Fever security for first deciding Freedom was a threat. The Fever didn't answer Just the News queries.

Royce White, the other NBA veteran who declared for the WNBA draft to test its eligibility policy, and his lawyer, former GOP Congressman Matt Gaetz, told the league to "preserve all records in anticipation of litigation" after unnamed sources denied the ex-players' eligibility.

No disruption versus a year of sexual harassment

The "XX" wristbands are a world apart from the Confederate symbols, bullying and harassing speech, and "lewd, indecent, or offensive speech and conduct" that the Supreme Court has ruled K-12 schools can prohibit, and their passive display was not "sufficiently severe or pervasive" to create an abusive environment, Judge Lynch wrote for the panel.

The only disruption at the Sept. 17, 2024, game was because "school officials chose to intervene" when the three spectators put on the wristbands at halftime, "after which the referee suspended the game for approximately fifteen minutes and the school officials chose to impose restrictions on appellants' speech and impose sanctions," the opinion says.

The Supreme Court pulled the rug out from under the district's argument that Title IX required it to punish the spectators for harassment, when the justices ruled 6-3 that states can prohibit males from female athletic competition without running afoul of the federal sex discrimination statute, the panel said.

It rebuked the district's argument that another 1st Circuit ruling – in a case involving "extensive evidence of a principal's sexual harassment of a student for over a year" – gave it license to make a "predictive judgment" that the wristbands would "eventually" violate Title IX.

The panel also rejected the district's argument that "earlier exchanges" with parents who objected to Tirrell in girls' competition justified its sanctions on the three plaintiffs. None of their protest planning "led to any attempt to 'heckle and intimidate'" Tirrell.

Lynch twice reiterated the panel was evaluating only the protest at the Sept. 17, 2024, game. It's not deciding "whether and under what circumstances passive speech, on other facts, consisting of displaying the 'XX' symbol on school property during school events could be reasonably thought to be harassing."

There is "no ripe controversy as to any other area of school property" besides "the sidelines of the soccer field and the adjacent parking lot," the opinion said.

The panel declined to issue "some form of relief" to the parents and grandparent, remanding that question to U.S. District Judge Steven McAuliffe, whose refusal to issue an injunction sparked a grassroots backlash. It noted New Hampshire's female-only sports law is in effect in light of the SCOTUS decision upholding such laws this year.

Fellers, Foote and Rash had sought to stop enforcement of the "public conduct" policy or athletics handbook to "prevent attendees at an extracurricular event from non-disruptively expressing disfavored viewpoints on political or social issues," or to "suppress non-disruptive expression of political or social views based on audience reaction or a heckler’s veto."

President Biden-nominated Judge Julie Rikelman quibbled with Lynch and President George W. Bush-nominated Jeffrey Howard, whose "senior status" means they only hear a fraction of Rikelman's case load, in a concurrence that questions whether SCOTUS precedent actually elevates "viewpoint neutrality" over protecting students' rights from "invasion."

Regardless of the absence of "material disruption, the school district viewed the XX symbol as communicating a demeaning and hateful message targeted at transgender athletes and restricted the plaintiffs' speech in an effort to protect those students" from the invasion of their rights as allowed by the Tinker precedent, Rikelman wrote. 

But because the district agreed it couldn't legally engage in viewpoint discrimination and yet it restricted the wristbands based on their message, "I agree that the record lacks evidence of actionable harassment or material disruption" and that Bow committed "viewpoint discrimination under relevant precedent," she wrote.