CHICAGO (CN) — A Seventh Circuit panel heard arguments Friday over whether a Wisconsin law barring convicted sex offenders from changing their name amounts to free speech infringement.
The underlying lawsuit was brought in Milwaukee federal court in May 2019 by Karen Krebs, a transgender woman from Kenosha, Wisconsin, who cannot change her name due to a 1992 conviction which required her to register as a sex offender.
Wisconsin law makes it a Class H felony for anyone who is required to register as a sex offender to legally change their name, criminal penalties for which range up to a $10,000 fine and six years in prison.
Krebs, whose forename given at birth is Kenneth, contended that her First Amendment rights are violated by being denied the ability to change her name in order to suit her identity, as she has not gone by her given name since she came out as transgender in 1999.
Her complaint, which named Kenosha County District Attorney Michael Graveley as a defendant, claimed that not being able to go by the name that comports with her self-identity causes her distress and embarrassment and creates confusion whenever she applies for a job, goes to the doctor or manages her finances, forcing her to explain the fact that she is transgender.
U.S. District Court Judge J.P. Stadtmueller, a Ronald Reagan appointee, did not feel Krebs had met the burden of proof to show that Wisconsin’s name-change statute violates her free speech rights and granted summary judgment to Graveley in March of this year.
Stadtmueller declined at that time to review and analyze the name-change statute since “without [Krebs’] freedom of speech being implicated in the matter, she presents no claim at all” and “the court has no authority to pass judgment upon the name-change statute in the absence of a justiciable injury.”
Krebs appealed to the Chicago-based Seventh Circuit in June, putting forth that the inability to change her name compels speech she strongly objects to and that, in any case, she is not attempting to conceal her identity or get around registering as a sex offender, as she has already reported both “Kenneth” and “Karen” to the Wisconsin Department of Corrections as names she is identified by and both are listed in the state’s sex offender registry.
Adele Nicholas, an attorney representing Krebs from her namesake Chicago firm, ultimately argued in Krebs’ appellant brief that “a statute that harshly restricts expression and is far removed from achieving any legitimate government objective fails under the First Amendment no matter what level of scrutiny is applied.”
U.S. Circuit Judge Ilana Rovner resisted Nicholas’ arguments early on Friday, finding that the only issue before the panel was whether the district court was wrong in finding that Krebs’ constitutional argument was undeveloped and that Nicholas had not pointed to anything in her brief to show that the issue was developed.
“We have, I think, a bit of a problem,” the George H.W. Bush appointee said. “Why shouldn’t we affirm the court given that you have not addressed the basis for the court’s decision?”
Nicholas responded that “neither party gave significant attention to the threshold issue” and that “it frankly seemed uncontroversial” since the First Amendment is routinely applied to cases in which parties are seeking to control his or her own name.
The attorney considered the district court’s decision “both wrong and puzzling” in that it presents “a very cramped view…of what you call yourself and whether you’re entitled to legal recognition.”
Arguing on behalf of Wisconsin was Assistant Attorney General Michael Morris, who stated that “this case is not about the First Amendment, it’s not about transgender rights,” but rather is simply about Krebs’ inability to meet her threshold burden to prove her free speech rights are being violated.
Rovner asked Morris, “Why is it a stretch to hold that the refusal to allow a name change impacts a person’s right to expression?”
The state’s attorney retorted that “a legal name is not forced on anyone by the state” and “it’s not the government making her say the name ‘Kenneth,’” also noting that Krebs had four years after coming out as transgender in 1999 before the Wisconsin name-change statute took effect but did not change her name.
When Morris wondered whether Krebs’ name change was inherently expressive, U.S. Circuit Judge Michael Brennan offered notable examples of more politically or religiously expressive name changes in the sports world, such as NBA players Ron Artest and Lew Alcindor changing their names to Metta World Peace and Kareem Abdul-Jabbar, respectively.
Morris conceded that context matters and threw out someone changing their name to “Black Lives Matter” as an example of a more expressive name change.
The assistant attorney general claimed that save the name-change law there would be nothing stopping a sex offender from changing their name and evading state detection, something Nicholas called “categorically false” upon rebuttal.
Nicholas argued that failing to register as a sex offender and failing to update certain vital identifying information are already felonies in Wisconsin and chalked up the name-change statute as “a solution in search of a problem.”
When U.S. Circuit Judge Amy St. Eve pressed Nicholas for specific evidence of a concrete injury suffered by Krebs, Nicholas made the case that the Wisconsin law forces Krebs to say something she does not want to say by identifying herself with a name she does not call herself and does not want to be called by other people.
Both St. Eve and Brennan were appointed by Donald Trump in 2018.
The Seventh Circuit gave no timeline for its decision at the close of arguments Friday.