In federal court, Bow administrators argue ‘XX’ is an ‘anti-trans’ symbol that should be banned

Protesters wear pink armbands on the sidelines of the Bow girls soccer game on Tuesday, September 24, 2024.

Protesters wear pink armbands on the sidelines of the Bow girls soccer game on Tuesday, September 24, 2024. GEOFF FORESTER

By JEREMY MARGOLIS

Monitor staff

Published: 11-22-2024 4:44 PM

Modified: 11-22-2024 6:56 PM


School Superintendent Marcy Kelley told a federal judge that the symbol “XX” displayed on pink armbands worn by Bow parents should be banned from all sporting events going forward, whether or not a transgender athlete is playing.

Kelley repeatedly defended the district’s decision to bar a group of parents and family members from wearing the armbands during a September soccer game in protest of a transgender girl’s participation in the game. She said the symbol “XX,” which refers to the chromosomes associated with females, is “anti-trans.”

“I didn’t want to wait for her to see this and feel like it’s wrong for her to be trans,” Kelley testified, referring to the sophomore player on the visiting Plymouth Regional High School girls soccer team.

Federal judge Steven McAuliffe will now weigh whether to temporarily block that ban on either First Amendment or viewpoint discrimination grounds, a decision which he described as legally “close” and which will hinge on previous court decisions in First Amendment cases related to school speech.

McAuliffe’s assessment of the case followed two days of testimony from the plaintiffs – Bow parents Kyle Fellers, Anthony Foote, and Nicole Foote, and grandparent Eldon Rash – and from Bow administrators, including Kelley and high school principal Matt Fisk. The judge’s decision on the plaintiffs’ request for a preliminary injunction barring the school district from enforcing its protest restrictions likely won’t come until at least December, according to the schedule set in the case.

Kelley spent more than an hour on the witness stand on Friday morning explaining why school leaders and ultimately the Bow police directed three of the plaintiffs in the case to remove the pink armbands during the soccer game. Two of the parents – Fellers and Foote – were later barred from attending future games, though those bans have since expired.

Kelley also explained why she would take the same action if the armbands were ever displayed at a school event again, described her personal views on transgender girls’ participation on girls’ sports teams, and detailed her administrative team’s planning in the days preceding the Sept. 17 soccer game.

Her testimony followed Fellers’, Foote’s and Rash’s accounts of what happened during the soccer game from their perspectives.

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Kelley vehemently defended her district’s approach to the incident, pointing to the school district’s responsibility to protect students from what her legal team has described as “harassment and intimidation” aimed at a particular student.

“In school districts, when we suspect that there’s some sort of threat that something may happen, we don’t wait for it to happen to take action,” Kelley said. “And that’s what we did here.”

Kelley described the “XX” marking, which was displayed prominently on the armbands, as “a pretty well-known anti-trans symbol” that she views as “exclusionary.”

She said her personal views on the participation of transgender girls in girls sports were “nuanced and there are many factors to consider,” and said she disagreed with a blanket ban like the one enacted in New Hampshire this summer.

But Kelley said her primary issue with the armbands was that they targeted a specific player.

“If we were to allow harassment against a particular student, we would be liable,” Kelley said.

The school district has contended that displaying the “XX” chromosomes violated a policy that requires “mutual respect, civility, and orderly conduct” during school events.

The Bow administrators said the policy would be violated whether or not transgender athletes are present, because of the message of exclusion they send to other transgender students at Bow High.

“We were previously worried about [the Plymouth player]. We are now more generally worried about the transgender community at this school and what this message says to them,” said Jonathan Shirley, an attorney for the Bow School district.

In the afternoon, Fisk, the principal, testified about his experience as an adviser for his school’s gay-straight alliance, including the challenges he has witnessed transgender students navigate.

“Schools should be places of education where students are able to learn in an environment in which they can take risks,” Fisk said. “And I don’t think you can do that if you see signs … that you are not wanted, that you should be excluded.”

Fisk said even the presence of the “XX” symbol in the school’s parking lot would prompt a conversation, though he didn’t outright say that “XX” bumper stickers are banned.

When probed for the presence of viewpoint discrimination, Kelley acknowledged that clothing with the  LGBT pride logo would be acceptable at the same sporting events that the “XX” symbol is banned, as long as the logo is not aimed at targeting a student or is a part of a protest. She said that is because the former is “inclusionary,” while the latter is “exclusionary.”

Kelley also described in depth how the school district prepared for the September soccer protest in the days after they caught wind of it via social media.

She said the district considered but ultimately rejected the option of closing the game to spectators completely. Ultimately, Kelley worked with Fisk, athletic director Michael Desilets, and the Bow police department to increase the presence of officials at the game.

During the second half, the game was temporarily paused while Foote, Fellers, and Rash were asked to remove their armbands, which they ultimately agreed to do after a police officer got involved.

Editor’s note: This story has been updated to clarify Superintendent Marcy Kelley’s testimony about the LGBT pride logo. Kelley testified that under certain circumstances, it may be worn on spectators’ clothing, but it may not be flown on a flag during school sporting events.

Jeremy Margolis can be contacted at jmargolis@ cmonitor.com.