Exeter student who claimed there are 'only two genders' loses court battle: Here's why

EXETER — A former Exeter High School student who claimed he was wrongly benched from playing in a football game for his view there "are only two genders" lost his lawsuit against the school district.

Despite the ruling, the student's attorney says his client feels vindicated by the judge's decision.

Rockingham Superior Court Judge Andrew Schulman ruled this week in favor of school officials stating New Hampshire state law does not allow an individual to sue a local government entity for violating their state constitutional rights unless there was a specific harm.

"He sat out a single football game between ninth-grade teams," Schulman stated. "He does not allege that this cost him a spot on any later team. He does not allege that this dulled his football prospects… There is no written school record of the benching. The incident is not part of the plaintiff's so-called 'permanent record.'"

However, the judge rejected claims by school officials the student was solely disciplined for using foul language and bullying, calling it "dishonest." He stated the student was benched because of "what they believed he said about pronouns," and not what he actually said, "which is no doubt constitutionally protected."

Attorney Richard Lehmann, who represents the student and his mother, said they feel gratified that the judge believed them even though the law was not on their side.

"At the end of the day, he believed our client and he didn't believe that the school officials were imposing punishment for the reason they said they were, but rather they were imposing punishment on issues related to students expressing themselves on gender ideology," he said. "This was never a case about money, it was about the principle that a student is supposed to be able to express themselves."

SAU 16 Superintendent Esther Asbell released a statement on behalf of the school district.

"The district is pleased with the outcome of this matter and appreciates the thoughtful reasoning used by the judge in reaching his decision," the statement read. "While the district may not necessarily agree with certain findings of fact, the district respects the role of the judge in this process."

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What led to the Exeter lawsuit

The student filed the lawsuit in November 2021 against the school district, football coach William Ball and EHS Assistant Principal Marcy Dovholuk.

The then-freshman claimed in the suit he received a one-game suspension for expressing his Catholic belief there are only two genders, male and female.

According to the student's lawsuit and SAU 16's response, both sides do not dispute a debate outside of school — on the school bus and later through private text messages — over gender and the use of pronouns preceded the one-game suspension.

The student claimed that a female classmate overheard a conversation he was having with friends on the bus over gender identity and the difficulty of using third-person pronouns to refer to themselves in Spanish. The female classmate responded saying, "There’s more than two genders,” to which the student who filed the suit, responded saying, “No there isn’t, there’s only two genders.”

The dispute escalated later that night when the female classmate sent the student an uninvited text, asking him, "how are you in high school and don't know the difference between sex and gender?

The student reiterated there are "two genders" and called the female classmate a "bozo," eventually telling her to "stfu," an acronym for, "shut the (expletive) up."

The female student then sent an email to Ball claiming that one of his players "was being extremely transphobic on the bus and misgendering other students in the community."

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Judge rejects SAU 16's claims regarding one-game suspension

The judge dismissed claims by school officials that the suspension was due to foul language in violation of the school's Athletic Code of Conduct .

"The school officials' purported shock at plaintiff's use of the terms 'bozo' and 'stfu' has all the believability of Captain Renault's famous exclamation of shock in ''Casablanca,'" he wrote.

The judge noted the vice principal's oral statements and log notes on the incident prove "that the meeting was about pronouns and gender identity."

"Neither the coach nor the vice principal told the plaintiff that the only reason for the punishment was his purportedly poor choice of words…" stated Schulman.

Schulman also noted the female classmate's email to Ball was "misleading."

"The testimony at trial did not reflect 'extreme transphobia' and there was no evidence that the plaintiff 'misgendered' another student," stated Schulman. "… The vice principal and the football coach seemingly reached the wrong conclusion because they chose not to investigate the facts. In fairness, the plaintiff did not provide a competing factual narrative and did not ask for an investigation. But in fairness again, the plaintiff was a ninth grader."

The judge also cast doubt on the student's claims that school officials infringed on his right to exercise his religion.

"He said nothing about religion when he met with the vice principal and the football coach," he stated. "Indeed, he said nothing about religion to anybody associated with the school prior to sitting out the football game."

In response to the judge's findings, SAU 16 stated it respectfully disagrees with the findings "pertaining to the credibility of its two professionals who were named in the lawsuit, and it believes that their testimony was consistent with the other evidence in the case. "

"In light of the fact that this matter involves a student, the district will refrain from further comment," the statement read.

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Cornerstone plans to appeal ruling to Supreme Court

The judge noted that while the student was suing for $1, there were no actual damages in this case as is required by state law. The types of harm that would allow for a lawsuit include bodily injury, property damage and personal injury.

"Plaintiff has not sued for negligent or intentional infliction of emotional distress," he stated. "Even if he had, the facts would not support such a claim. He did not suffer severe emotional distress."

In his ruling, the judge rejected the school district's request for attorney fees, stating "this was not a frivolous case" and was "not intended to harass or intimidate any school employee."

The student's lawsuit was backed by Cornerstone, a New Hampshire-based Christian advocacy organization.

The organization noted in a press release the court "ruled in favor of the high school on purely legal grounds, finding that Article 22— New Hampshire’s Free Speech Clause—affords fewer remedies than are available under the federal First Amendment."

However, they said the ruling sets them up for a "promising basis for appeal" to the New Hampshire Supreme Court.

“Cornerstone and its attorneys look forward to appealing this decision to the New Hampshire Supreme Court—which will be bound by the trial court’s findings of fact—and to securing a ruling that will protect free speech and religious liberty for all Granite State students,” said Shannon McGinley, Cornerstone’s executive director.

Lehmann said they want to take the case to the state Supreme Court to change the law.

"The only place we came up short was on the law, not on any of the facts," he said. "We feel like we are in a good position to take this case to the state Supreme Court and try to get a ruling from them that the constitution of our state enables people to vindicate their constitutional rights if they haven't suffered physical or monetary damages."

Attorneys for the school district did not immediately return calls seeking comment.

This article originally appeared on Portsmouth Herald: Exeter student who claimed there are 'only two genders' loses court battle: Here's why