First Circuit: Forcing Parents to Remove Pink “XX” Wristbands at Girls’ Soccer Game Likely Violated First Amendment

On September 17, 2024, several parents wore pink "XX" wristbands on the sidelines of a high school girls' soccer game as a silent protest related to a transgender student playing on the opposing team. School officials instructed the parents to remove the wristbands and later imposed sanctions. The parents sued, and an appellate panel issued a written opinion in Fellers v. Kelley finding a likelihood of First Amendment success for the parents.

Why the court sided with the parents

• No demonstrated disruption: There was no evidence that the parents' wristbands caused any material disruption until school officials intervened. The sequence in the record was that officials told the parents to remove the wristbands, the referee suspended the game for about fifteen minutes after the intervention, and sanctions followed.

• Passive, silent protest: The parents did not chant, march, shout, confront players, or otherwise act in ways the record shows would be disruptive. They donned the wristbands at halftime and remained silent.

• No evidence of harassment or Title IX violation: The record lacks proof that any player actually saw the wristbands or subjectively perceived a hostile environment. The principal acknowledged challenges transgender students face but did not identify facts showing the wristbands were sufficiently severe or pervasive to qualify as harassment under Title IX.

• Predictive judgments insufficient on these facts: The district argued it could prohibit conduct it reasonably predicted would lead to actionable harassment. The court agreed predictive judgments are sometimes permissible, but said the district's prediction was not supported by the evidence in this case.

The court declined to pick definitively between the limited-public-forum and Tinker frameworks for this category of speech. It also left open whether passive displays of the "XX" symbol could be harassing on a different factual record. The ruling rests on the absence of disruption and harassment evidence in this case.

The opinion signals that schools face constitutional risk when they remove or sanction parents for silent, nonconfrontational protest at school events absent concrete evidence of disruption or harassment. School officials may still be able to act preemptively in other circumstances when there is factual support for a reasonable prediction of disruption or Title IX liability, but those facts were not present here.

The case posture on remand and any further appeals could clarify whether and when spectator speech at school events should be tested under Tinker, limited-public-forum doctrine, or another framework. The court's careful fact-based approach shows future disputes will turn heavily on record evidence about disruption, actual notice to players, and the severity or pervasiveness of alleged harassment.