In an order last week (in Fellers v. Kelley), federal district judge Steven J. McAuliffe ruled that public-school officials did not violate the First Amendment rights of adults attending a girls’ soccer game when it ejected them for wearing pink wristbands that bore the mark XX.
The adults wore the wristbands as a quiet protest against the fact that a player on the opposing team was a biological male. As Judge McAuliffe acknowledges, “They did not shout, chant, or otherwise call attention to themselves or their message.” In his view, it did not matter whether the adults meant to communicate only that “they opposed transgender girls or women [i.e., biological males] participating in girls’ or women’s sporting events.” School officials could reasonably conclude that “their message included a demeaning and harassing assertion—an assertion of inauthenticity, falsity and nonexistence with respect to some students’ core and immutable characteristics (i.e., their gender identities).” The XX symbol in this context could “reasonably be understood as directly assaulting those who identify as transgender women.” (Emphasis added.)
Judge McAuliffe further maintains that the school’s policy—which would allow pro-transgender speech—doesn’t discriminate on the basis of viewpoint: It “is not viewpoint based. It is effects based.”
This is bonkers. Quietly wearing an XX wristband at a soccer game is deemed to be “directly assaulting” a player who never even saw the wristband and who, if even he had, shouldn’t be able to squelch the First Amendment rights of adults. Yet vocal speech on the other side of the transgender debate would be allowed.
The only difficult question in the case is how much of the insanity is McAuliffe’s alone and how much is dictated by the First Circuit’s decision last year in L.M. v. Town of Middleborough, which held that a public school could bar a student from wearing a T-shirt bearing the message “There are only two genders.” A petition for certiorari in the First Circuit case awaits imminent action by the Supreme Court.