Massachusetts, Maine, New Hampshire and Rhode Island risk becoming hotbeds of censorship by school districts if the 1st U.S. Circuit Court of Appeals construes perceived offense as harassment. School districts risk massive liability for harassment if it does not.
Lawyers for censored parents and New Hampshire’s Bow School District laid out alternate visions of legal calamity to a three-judge panel of the Boston-based court at a hearing Wednesday on the constitutionality of Bow banning “XX” wristbands, a silent form of advocacy for female-only sports, from school athletic events.
Parents and a grandparent sued the district more than a year ago, after it threatened to arrest them at a Sept. 17, 2024, girls’ soccer game featuring a male player for not removing their wristbands, which refer to the female chromosome pair, and issued no-trespass orders. Bow set up a “protest zone” for critics of male inclusion soon after the suit was filed.
Their passive protest shortly followed a federal judge blocking The Free State’s law that “prohibits biological males from participating in female athletics,” an injunction that applied only to the male athletes who sued, not every male who identifies as a girl.
A district judge nominated by President George H.W. Bush rejected a preliminary injunction against Bow this spring, claiming the wristbands send a “demeaning and harassing” message to males who identify as girls and participate in girls’ sports.
Wednesday’s oral argument suggested the panel might buck the 1st Circuit’s reputation as a rubber stamp for schools on gender identity, frequently leaving Bow School District lawyer Jonathan Shirley seeming to stumble for answers that would satisfy their questions.
Another panel upheld a school district’s ban on a student wearing an “Only Two Genders” shirt because it “assertedly demeans characteristics of personal identity” even if done “passively, silently, and without mentioning any specific students.” Supreme Court Justices Samuel Alito and Clarence Thomas blasted their colleagues for not accepting that case.
One of Wednesday’s panel members, Judge Julie Rikelman, served on another that upheld a school district’s practice of hiding students’ identification as the opposite sex from their parents. President Biden nominated Rikelman, who argued to preserve federal abortion rights in Dobbs, a month after SCOTUS ruled against her abortion-clinic client.
The 1st Circuit was the only federal appeals court until recently without any active GOP-nominated judges, which Reuters reported has made its lower courts “magnets for lawsuits challenging Trump’s agenda by Democratic state attorneys general and advocacy groups.” The Senate confirmed President Trump nominee Joshua Dunlap on Tuesday.
Wednesday’s panel included two judges with senior status, meaning they are allowed to handle a reduced caseload compared to active judges: Jeffrey Howard, nominated by President George W. Bush, and Sandra Lynch, by President Clinton.
Hellbound and Down 