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Federal judge pushes back on parents calling trans athlete 'a boy' in legal battle over pro-girls protests

McAuliffe's federal judicial service dates back to 1992, when he was appointed by former President George H.W. Bush. On Thursday, McAuliffe heard arguments in a case in which plaintiffs Kyle Fellers and Anthony Foote sued the Bow School District after being banned from school grounds for wearing the wristbands at their daughters' soccer game in September. 

The wristbands said "XX" in reference to the natural female chromosomes. The "XX" logo has become an unspoken symbol of the ongoing legal and political battle against transgender inclusion in girls and women's sports across the country. Many consider it a women's rights phenomenon. 

The no-trespass orders have since expired, but McAuliffe is deciding whether the plaintiffs should be allowed to wear the wristbands and carry signs at upcoming school events, including basketball games, swim meets and a music concert, while the case proceeds.

A protester outside the Kansas Statehouse holds a sign after a rally for transgender rights on the Transgender Day of Visibility, March 31, 2023, in Topeka, Kan. (AP Photo/John Hanna)

They wore the wristbands because another federal judge in New Hampshire, Landya McCafferty, who was appointed to her seat by President Obama in 2013, ruled two transgender athletes would be allowed to play on high school girls soccer teams, overruling a state law in place to prevent that from happening. 

Both of the fathers say the intention of the armband was not to protest Tirrell, but to support their own daughters in a game that featured a biological male. 

McAuliffe questioned the notion that the wristbands were in support of their own daughters.

"Sometimes the message you think you’re sending might not be the message that is being sent," he said.

McAuliffe asked Foote whether it occurred to him that a transgender person might interpret the pink XX wristbands as an attempt to invalidate their existence.

"If he’s a trans female, pink might be a color he likes," Foote responded.

First lady Jill Biden, right, and Steven J. McAuliffe, widower of Christa McAuliffe, arrive at the Christa McAuliffe School in Concord, N.H., March 17, 2021. (Jessica Rinaldi/The Boston Globe via Getty Images)

Transgender inclusion in girls' and women's sports emerged as a mainstream political issue in the last few years. Instances of athletes discovered to be male and then legally protected to continue playing have emerged in rapid succession since the start of the Biden administration. 

This includes instances like those involving Tirrell in New Hampshire and others in Virginia and California. At the college level, a situation at San Jose State University involving a transgender volleyball player has prompted multiple lawsuits and a media firestorm. It became a talking point of Donald Trump's presidential campaign before his recent election win. 

Trump and even his wife, Melania, who has admitted to disagreeing with Republicans on issues of LGBT rights, each announced they are opposed to letting biological males compete in girls and women's sports. Trump advocated for a blanket ban during a Fox News town hall event on the campaign trail. 

Multiple states filed lawsuits and enacted their own laws to address the issue after the Biden-Harris administration issued a sweeping rule that clarified that Title IX’s ban on "sex" discrimination in schools covers discrimination based on gender identity, sexual orientation and "pregnancy or related conditions," in April. 

During the most recent election cycle, multiple Democrats, including Texas Rep. Collin Allred backtracked on past support for transgender inclusion in women's sports. 

That trend continued after the election when Massachusetts Democratic Rep. Seth Moulton spoke out against his party's stance and actions in enabling transgender inclusion in multiple interviews, inciting fierce backlash and even a massive pro-transgender rally outside his office. 

Now, multiple judges like McAuliffe across the country are presiding over cases about the eligibility of transgender athletes in sports. 

The Associated Press contributed to this report.

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