The XX wristband First Amendment dispute between parents of girls’ footballers and a New Hampshire school district has reached a decisive early-stage verdict: the United States Court of Appeals for the First Circuit ruled on 26 August 2026 that the Bow School District likely violated the First Amendment when it ordered parents to remove pink ‘XX’ wristbands at a girls’ soccer game.
The decision in Fellers v. Kelley, No. 25-1442, was written by Senior Circuit Judge Sandra L. Lynch and joined by Senior Circuit Judge Jeffrey R. Howard. Circuit Judge Julie Rikelman concurred separately. The panel reversed a district court ruling that had denied the parents a preliminary injunction, holding instead that the appellants had established a likelihood of success on their viewpoint discrimination claim.
What Happened at the 17 September 2024 Game
The case arose from a girls’ soccer match between Plymouth Regional High School and Bow High School. The four plaintiffs, Kyle Fellers, Anthony Foote, Nicole Foote, and Eldon Rash, attended to watch their daughters (and, in one case, granddaughter) play. Plymouth’s squad included a transgender athlete, Parker Tirrell.
The parents waited until halftime before donning the pink ‘XX’ wristbands. They did not march, chant, shout, or confront any player. Bow High School Principal Fisk nonetheless ordered them to remove the wristbands. The match referee suspended play for approximately fifteen minutes while school officials intervened, after which further sanctions followed, including No Trespass Orders issued against the parents on 30 September 2024.
The context matters. New Hampshire had enacted a law in the summer of 2024 barring athletes assigned male at birth from girls’ sports, but a court blocked the statute in September of that year. Tirrell had been among those who sought that injunction, and the Plymouth game took place one week after the court’s order, according to Courthouse News Service.
Before the game, plaintiff Fellers had sent emails to Superintendent Marcy Kelley and other administrators that the First Circuit’s opinion notes included language describing a transgender competitor as a ‘mentally ill man’ and ‘maniac.’ The night before the match, he posted on Facebook encouraging spectators to ‘protect the integrity and safety of female athletics.’ School officials pointed to this prior conduct when justifying their intervention.
XX Wristband First Amendment Analysis: Viewpoint Discrimination on the Sidelines
The First Circuit declined to resolve which mode of First Amendment analysis applies to school sidelines occupied by adult spectators, a question the Supreme Court has not addressed. The panel found that, whichever framework applied, the outcome was the same: the school had not justified its actions.
On disruption, the court found no evidence that the parents’ passive display caused any material disturbance before officials chose to intervene. On harassment, the court noted that there was no evidence any player, including Tirrell, had actually seen the wristbands or subjectively perceived a hostile environment. The school district’s argument that it had an affirmative duty under Title IX to act pre-emptively failed on the facts: Principal Fisk had not explained how a silent display of the ‘XX’ symbol could constitute sufficiently severe or pervasive conduct to amount to actionable harassment.
The panel’s sharpest finding concerned the school’s stated reasons for acting. Superintendent Kelley had described the ‘XX’ symbol as ‘exclusionary.’ Principal Fisk had called it ‘hateful’ and ‘anti-trans.’ The court held that these characterisations demonstrated the school had acted against the parents because it disagreed with their message, which is the hallmark of impermissible viewpoint discrimination.
Citing Rosenberger v. Rector and Visitors of the University of Virginia, Judge Lynch wrote that ‘the government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.’ The First Circuit also invoked the Supreme Court’s observation, made in a case involving a high school football game, that learning to tolerate diverse expressive activities ‘has always been part of learning how to live in a pluralistic society.’
At oral argument on 5 November 2025, counsel for the plaintiffs raised the further question of whether school officials had permitted adult spectators to display a Pride Flag, deemed ‘inclusionary,’ while banning the XX wristbands as ‘exclusionary’, according to the Institute for Free Speech’s oral argument summary. The panel did not need to resolve that specific factual question to find a likelihood of viewpoint discrimination.
Judge Rikelman’s concurrence proceeded on narrower ground. She noted that the school district had itself conceded, both in briefing and at oral argument, that viewpoint neutrality applied to its conduct at the game. That concession, she concluded, was sufficient to resolve the appeal without addressing the underlying doctrinal dispute about which First Amendment framework governs adult spectators on school grounds.
The district court below, in Fellers v. Kelley, No. 24-cv-311-SM-AJ, 2025 WL 1098271 (D.N.H. 14 Apr. 2025), had denied the preliminary injunction, finding the XX symbol ‘can reasonably be understood as directly assaulting those who identify as transgender women.’ The Foundation for Individual Rights and Expression (FIRE), which filed an amicus brief on 1 July 2025 arguing that schoolchildren’s speech standards cannot be applied to silence adult parents’ passive political protest, welcomed the reversal.
Del Kolde of the Institute for Free Speech argued for the plaintiffs at the First Circuit. Jonathan Shirley of Cullen Collimore in Nashua, New Hampshire argued for the school district.
The ruling is a preliminary injunction determination, not a final judgment on the merits. Subject to any onward appeal or further proceedings in the District of New Hampshire, the case will return to the lower court. The First Circuit expressly declined to rule on whether the school’s general conduct policy is itself unconstitutional; its holding goes only to whether administrators violated these parents’ First Amendment rights by applying that policy to their specific XX wristband protest, as the Concord Monitor has reported.
