A federal judge ruled that two fathers can’t wear pink wristbands that say “XX” to silently protest the inclusion in women’s sports of biologically-male transgender students. Bizarrely, the judge wrote, “The message generally ascribed to the XX symbol, in a context such as that presented here, can reasonably be understood as directly assaulting those who identify as transgender women.” The ruling is “bonkers,” notes former deputy assistant attorney general Ed Whelan.
Peacefully wearing a wristband to express your views is the very opposite of “assaulting” someone. Judge Steven McAuliffe, who accused the fathers of “directly assaulting” transgender people by wearing wristbands, should be ashamed of himself for saying something so false and intemperate. Equating speech with violence is a dangerous and reprehensible thing for a judge to do.
On April 14, Judge McAuliffe ruled that the “Bow School District was acting within its authority to kick two soccer dads out of a girls game for wearing pink ‘XX’ wristbands as a silent protest against biological males playing on girls’ teams,” reports the New Hampshire Journal. The fathers were also barred from school property for a time afterwards.
Del Kolde of the Institute for Free Speech, which represents the parents, said “We strongly disagree with the Court’s opinion…denying our request for a preliminary injunction. This was adult speech in a limited public forum, which enjoys greater First Amendment protection than student speech in the classroom.”
Judge McAuliffe also claimed the wristbands were a “demeaning and harassing assertion”, in his ruling Monday in Fellers v. Kelley.
This was wordplay to try to get around the First Amendment. As the Third Circuit Court of Appeals observed in Saxe v. State College Area School District (2000), calling speech “harassing” because it demeans someone or hurts their feelings does not strip it of First Amendment protection, because “there is no categorical ‘harassment exception’ to the First Amendment’s free speech clause,” not even for “speech that is within the ambit of federal anti-discrimination laws.”
Wearing a wristband to express your views is obviously protected. It is closely akin to what the Supreme Court ruled was protected, even for schoolchildren, in its ruling in Tinker v. Des Moines School District (1969). In that case, the Supreme Court ruled that the First Amendment protected the right of students to wear black armbands in class to oppose the Vietnam War, because they were merely engaging in “silent, passive expression of opinion.” The fact that a “few students made hostile remarks to the children wearing the armbands” was not proof of disruption warranting censorship of their speech.
Similarly, the fathers wearing the XX wristbands engaged in a silent, passive expression of opinion that was protected by the First Amendment. Moreover, the fathers are adults, and adults have more freedom of speech, even in educational settings, than children do.
That their wristbands might conceivably offend a transgender player is not grounds to banning them as “harassment”, especially since they were not directed to any such player. The Ninth Circuit Court of Appeals quashed a racial harassment lawsuit over a white college instructor’s racially-charged anti-immigration emails, which deeply offended Hispanic staff, because the emails were not directed at any staffer in particular, and thus were protected by the First Amendment even if they hurt people’s feelings. (See Rodriguez v. Maricopa Community College District, 605 F.3d 703 (9th Cir. 2010)).
The fathers were wearing their wristbands at a public athletic event, where the government is not allowed to restrict speech based on viewpoint, because it is a limited public forum. By kicking the fathers out of the game because of the message on their wristbands, the school district did just that — target their viewpoint.
The judge admitted that the school district’s “athletic events” were a “limited public forum” where censorship based on viewpoint is forbidden. But he said the school district was allowed to restrict “adult speech…when that speech demeans, harasses, intimidates, and bullies” a transgender student. “Indeed, school authorities are obligated to” restrict such speech, McAuliffe wrote.
Judge McAuliffe conceded that speech cannot be restricted based on viewpoint in limited public forums like public athletic events. But he upheld banning the wrist bands anyway, because he wrongly concluded that the Bow School District’s policy of banning the XX wristbands was not viewpoint discriminatory. Rather than suppressing such speech because of its viewpoint, he said, the school district was merely because of the negative effects caused by its message. “But, restricting the wearing of symbolic wristbands….given the negative and demeaning messaging the School District reasonably understood them to convey, is not viewpoint based. It is effects based,” the judge claimed.
But “effects based” was just another way of saying viewpoint-based.
“Giving offense is a viewpoint,” explained the Supreme Court in Matal v. Tam (2017), where it ruled that a restriction on disparaging trademarks was unconstitutionally viewpoint-discriminatory, as applied to racially demeaning terms like “slants” for Asians. The Supreme Court added, “We have said time and again that ‘the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.’”
The fact that speech causes a negative reaction is not an “effects based” reason to ban it, but rather a sign that government is targeting the content of the speech. The Supreme Court explained that “listeners’ reactions to speech are not a content-neutral basis for regulation,” in Forysyth County v. Nationalist Movement (1992), where it ruled that white nationalists couldn’t be charged more for a permit to march because of the negative effects of their speech.
Moreover, the judge’s advocacy of restricting “negative and demeaning messaging” about trans people is by definition viewpoint-discriminatory. The Supreme Court rejected the idea that the government can target such demeaning speech in Matal v. Tam, where it noted that “the Government asserts an interest in preventing ‘underrepresented groups’” from being “ ‘bombarded with demeaning messages.'” It rejected that idea, saying “that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'”
Since the government’s goal of banning “demeaning messaging” about a minority group was deemed unconstitutionally viewpoint-discriminatory in Matal v. Tam, it is also viewpoint-discriminatory in Fellers, where the judge himself writes on page 37 that the speech merited suppression because of its “demeaning and harassing character.” Moreover, the judge describes the wristbands as being objectionable precisely because of their viewpoint, that there are only two genders, or that a biologically-male student should not play on the girl’s team (on page 37 of his ruling):
Beyond “I oppose your participation,” the message can reasonably be understood to include assertions that there are “only two genders,” and those who identify as something other than male or female are wrong and their gender identities are false, inauthentic, nonexistent, and not entitled to respect.
Even if the XX wristbands were somehow “demeaning,” that does not make them unprotected by the First Amendment, even in an educational setting. For example, a judge struck down the University of Wisconsin harassment code, which made it an offense to make “racist or discriminatory comments, epithets or other expressive behavior directed at an individual or on separate occasions at different individuals…if such comments, epithets or other expressive behavior or physical conduct intentionally: 1. Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and 2. Create an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity.” (See UWM Post, inc. v. Board of Regents of University of Wisconsin System, 774 F.Supp. 1163 (E.D. Wis. 1991) (boldface added)).
The judge’s labeling of the XX wristbands as “harassing” does not change whether the wristbands’ proscription was viewpoint-discriminatory. Hostile-environment regulations are inherently content-based and viewpoint discriminatory, as a court noted in striking down a school harassment code that was similar to, but broader in some ways, than federal sexual harassment laws. (See Saxe v. State College Area School District, 240 F.3d 200, 206-07 (3d Cir. 2001) (“when anti-discrimination laws are ‘applied to … harassment claims founded solely on verbal insults, pictorial or literary matter, the statute[s] impose[ ] content-based, viewpoint-discriminatory restrictions on speech.'”), quoting DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596–97 (5th Cir. 1995)). That is why hostile-environment harassment regulations typically have to be more limited in their reach than the harassment policy in Fellers, precisely because their content and viewpoint-discriminatory nature means they have to be narrowly-tailored.
In ruling that the fathers could be kicked out because of their XX wristbands, Judge McAuliffe repeatedly cited a ruling restricting children’s free speech rights, L.M. v. Town of Middleborough (2024), in which the First Circuit Court of Appeals ruled that a boy could be prevented from wearing a T-shirt saying “There are only two genders” while in school.
But that decision — which was wrongly decided — did not involve a limited public forum where viewpoint discrimination is forbidden, like the athletic event the fathers were kicked out of.
Moreover, the fathers are adults, who enjoy more First Amendment protection than children have. As a federal appeals court explained in upholding restrictions on distribution of written materials by students, “what we say in this opinion does not apply to college or other post-secondary campuses and students. Few college students are minors, and colleges are traditionally places of virtually unlimited free expression.” (Bystrom v. Fridley High School (1987)). The Supreme Court’s Tinker decision lets K-12 schools restrict students’ speech in or near school if it “materially disrupts classwork” or school operations, or will likely cause such a disruption. But protesting outside a school is protected by the First Amendment, when a parent does it, even if it foments unrest.
