Judge in Bow wristband lawsuit rules on several motions ahead of hearing

Nov. 17—The judge in a First Amendment lawsuit filed against the Bow School District has ruled on several procedural motions filed by attorneys for both sides, ahead of a Nov. 21 hearing on a preliminary injunction request.

The plaintiffs in the lawsuit — three parents and a grandparent — claim their rights were violated when they were barred from school grounds over their silent protest of a transgender athlete playing in a girls soccer game.

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.

In the school district's answer to the plaintiffs' complaint, the district "demands a jury trial on all claims so triable."

Attorneys for Bow schools are also asking a judge to take notice of findings in a separate lawsuit brought by families of two New Hampshire public high school students, challenging a new state law banning transgender girls in grades 5-12 from participating in school sports.

In a motion dated Nov. 7, attorneys for the plaintiffs ask the court to eliminate all of plaintiffs' claims for compensatory damages and reduce the claims for nominal damages to one dollar owed to each plaintiff, for a maximum of $4.

In the motion, the plaintiffs state they are doing so to simplify the case, eliminate all jury triable issues, and respond to the court's concerns voiced at the Oct. 8 hearing about the presence of damages claims.

Plaintiffs state the Seventh Amendment provides a jury trial right for civil cases only "where the value in controversy shall exceed twenty dollars."

On Nov. 13, Judge Steven McAuliffe issued a ruling granting the plaintiffs request to do away with a jury trial, saying the hearing scheduled for Nov. 21-22 will focus solely on injunctive relief sought by plaintiffs. Both parties will address the issue of mootness first, with plaintiffs' arguing first, followed by defendants' counsel. If the court concludes that the relief sought in the motion is not moot, the hearing on the plaintiffs' motion for injunctive relief will proceed with defendants presenting first on the First Amendment issues.

At the conclusion of the motion hearing Nov. 21-22, the court will consult with counsel to set a pretrial schedule, including a date for a bench trial.

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.

Gov. Chris Sununu signed a law in July requiring athletes in grades 5-12 participating in interscholastic or club sports to play on teams matching the gender listed on their birth certificate.

Parker Tirrell, a transgender girl who plays for Plymouth Regional High School, and a second transgender athlete — Iris Turmelle, a 14-year-old ninth grader at Pembroke Academy — challenged HB 1205 in a lawsuit filed in federal court in August.

Last month, Judge Steven McAuliffe ordered Fellers, Anthony "Andy" Foote and Nicole Foote be allowed to attend games and events if they refrain from wearing the wristbands with "XX" symbols or holding signs.