Episode 39: Fellers v. Kelley
Fellers, et al. v. Kelley, et al., argued before Circuit Judge Julie Rikelman and Senior Circuit Judges Sandra L. Lynch and Jeffrey R. Howard in the United States Court of Appeals for the First Circuit on November 5, 2025. Argued by Del Kolde (on behalf of Kyle Fellers, et al.) and Jonathan Shirley (on behalf of Marcy Kelley, et al.).
Background of the case, from the Institute for Free Speech case page:
A silent protest in support of girls’ sports led Bow officials to censor XX wristbands, threaten arrests and ban dissenters from school grounds. Now, three parents and a grandfather are fighting back against the officials who trampled on their First Amendment rights—and the policies those officials weaponized to do it.
The lawsuit, filed in the U.S. District Court for the District of New Hampshire, alleges that the defendants violated the plaintiffs’ First Amendment rights by forcing them to remove “XX” wristbands, and then banning them from school grounds. The plaintiffs wore the wristbands to silently protest government officials allowing a biological male to play on the opposing girls’ soccer team.
School officials, along with a police officer, confronted the parents during the game, demanding that they remove the wristbands or leave. The referee also temporarily stopped the game and said that the game would be over if the remaining plaintiff did not remove his wristband. Two of the plaintiffs were later sent no-trespass notices excluding them from future games.
The plaintiffs ask the court to enjoin the school from enforcing its unconstitutional policy or practice of censoring the display of XX wristbands or displaying signs in the parking lot in support of protecting women’s sports at Bow school sporting events
Statement of the Issues, from the Plaintiff-Appellants’ Opening Brief:
- Does a blanket ban on so-called “exclusionary” speech by adults at school events open to the public discriminate against speech based on its content and viewpoint?
- Do public school officials illegally discriminate against speech based on viewpoint by banning adult spectators at school sporting events from wearing XX-wristbands conveying an “exclusionary” message, when those same officials permit adult spectators to display a Pride Flag because the message is “inclusionary?”
- Is the First Amendment’s protection of speech by adult spectators in a limited public forum, such as a public-school extracurricular sporting event, subject to the same legal test for the protection of student speech in schools set forth in Tinker v. Des Moines and its progeny?
- Can the passive display of an XX-wristband by parents watching a school sporting event in which a trans-identified student is playing “reasonably be understood as directly assaulting those who identify as transgender women?”
- Did the district court correctly find that the XX-wristbands’ message would be likely to injure transgender students when the record lacks evidence of such phenomena?
- Did the district court err by denying plaintiffs’ motion for a preliminary injunction?
Resources:
Listen to the argument here:
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