The US Court of Appeals for the First Circuit has ruled in favour of four plaintiffs in Fellers v. Kelley (No. 25-1442), a First Amendment challenge arising from a New Hampshire high school girls’ soccer match, holding that school administrators engaged in unconstitutional viewpoint discrimination when they ejected the plaintiffs for wearing pink ‘XX’ wristbands in protest at a transgender athlete’s participation.
The ruling, issued on 26 August 2026, remands the case to the federal district court. Subject to any onward proceedings, it establishes that the silent display of the wristbands did not constitute harassment or disruption sufficient to justify the school’s response.
What Happened at the 17 September 2024 Match
The game, between Bow High School and Plymouth, featured Plymouth athlete Parker Tirrell, a transgender player who had obtained a federal court injunction just one week earlier exempting her from New Hampshire’s 2024 law barring athletes assigned male at birth from girls’ sports teams in grades 5 to 12, according to the Concord Monitor.
According to the First Circuit’s opinion, plaintiff Anthony Foote had instructed the protesting group not to wear the wristbands until halftime. At the interval, Foote walked to the Bow High School car park, placed a poster opposing transgender sports participation on his car windscreen, and then he and Kyle Fellers quietly put on the ‘XX’ wristbands.
Athletic director Michael Desilets asked Fellers to remove his wristband. When Fellers refused, Desilets consulted Principal Matt Fisk and Bow Police Lieutenant Philip Lamy. The game was halted and police escorted the plaintiffs from the premises. After the match, Fellers was found standing beside his car holding a poster reading ‘Protect Women’s Sports for Female Athletes’; Lieutenant Lamy asked him to leave and Fellers briefly objected before departing.
Fellers and Foote subsequently received no-trespass orders prohibiting them from entering ‘the buildings, grounds, and property of the Bow School District,’ including car parks and athletic playing fields. The First Circuit’s opinion records that unspecified additional sanctions were also imposed on the appellants.
Fellers v. Kelley First Amendment Arguments and the Court’s Reasoning
The four named plaintiffs are Kyle Fellers, Anthony and Nicole Foote, and Eldon Rash, the last of whom the First Circuit identifies as a grandfather watching his granddaughter play rather than a parent. The defendants include the Bow School District, Superintendent Marcy Kelley, individual school officials, police department representatives, and the New Hampshire Interscholastic Athletic Association. The Institute for Free Speech filed the original lawsuit in September 2024 in federal court in Concord.
US District Court Judge Steven McAuliffe denied the plaintiffs’ request for a preliminary injunction on 14 April of the following year, writing that the ‘XX’ symbol ‘can reasonably be understood as directly assaulting those who identify as transgender women’ and that the school district reasonably interpreted the wristbands as conveying a ‘demeaning and harassing assertion’ about transgender students’ ‘core and immutable characteristics,’ according to the Union Leader. The plaintiffs appealed to the First Circuit on 2 May.
A three-judge First Circuit panel heard oral arguments approximately nine months before handing down its 26 August 2026 decision. Circuit Judge Julie Rikelman dissented from the majority’s reasoning, though all three judges voted to overturn the district court, according to the Valley News.
The First Circuit’s opinion records that Principal Fisk considered the ‘XX’ symbol to be ‘hateful,’ ‘anti-trans,’ and concerning given ‘the challenges that trans kids go through.’ The district court had concluded that Superintendent Kelley and Principal Fisk’s interpretation and enforcement of school policy did not constitute viewpoint discrimination. The First Circuit disagreed.
The court was careful to limit its holding. It did not rule the school’s conduct policy unconstitutional on its face; it ruled only that administrators had violated the plaintiffs’ First Amendment rights by applying that policy specifically to suppress their message. As the court wrote: ‘The characteristics of the school as a place of learning reinforce that administrators cannot favor one side of a debate involving parental speech on an issue of prominent public concern.’
The school district was represented on appeal by attorney Jonathan Shirley of Cullen Collimore in Nashua, New Hampshire, according to Courthouse News Service.
Wider Context: Tirrell’s Separate Lawsuit and New Hampshire Legislation
Tirrell and fellow athlete Iris Turmelle, represented by the ACLU of New Hampshire, had separately sued state and district officials in August 2024 over the New Hampshire law restricting team eligibility by biological sex. In July 2026, both athletes withdrew that lawsuit after the US Supreme Court upheld the constitutionality of comparable statutes in Idaho and West Virginia, as reported by the Keene Sentinel.
The New Hampshire Legislature has also moved separately to restrict a school district’s power to issue no-trespass orders of the kind served on Fellers and Foote, according to the Valley News.
On remand, the district court must now assess whether the plaintiffs are entitled to a preliminary injunction in light of the First Circuit’s viewpoint-discrimination finding, with the Fellers v. Kelley First Amendment dispute far from its final resolution.
