MADISON, Wis. (CN) — The Wisconsin Supreme Court ruled on Thursday that a transgender woman who had to register as a sex offender as a teenager has no legal avenue to change her name to match her gender identity, as all sex offenders are banned from legally changing their name.
In the underlying case, in 2016, a 15-year-old—identified in court documents by the alias Ella—was found to have held down and forcibly performed oral sex on a teenaged acquaintance with the assistance of a friend who put a hand over the victim’s mouth to prevent him from yelling. The victim, called Alan, was autistic, blind in one eye, and 6 inches shorter and more than 200 pounds lighter than Ella at the time, according to court records.
After pleading no contest to one count of sexual assault of a child under 16 years of age and spending time in two juvenile detention and treatment centers, a Shawano County Circuit Court judge denied Ella’s motion to stay her juvenile sex offender registration. Under Wisconsin law, sex offenders must register a legal name and any aliases they use, and they may not legally change their name.
Ella, who began transitioning from a male identity to a female identity as a teen and is now 22, argued that requiring her to register as a sex offender under her male name given at birth violates her First Amendment right to express her true female identity. She also contended the registry requirement, as applied to her, amounted to cruel and unusual punishment under the Eighth Amendment.
But the Wisconsin Court of Appeals affirmed the circuit court order, and on Thursday the Wisconsin Supreme Court followed suit in denying Ella’s attempt to change her name after hearing arguments in the case in February.
In a 4-3 decision, Justice Rebecca Grassl Bradley, a conservative, was unwilling to entertain either of Ella’s constitutional pleas in upholding the lower courts.
“Consistent with well-established precedent, we hold Ella’s placement on the sex offender registry is not a ‘punishment’ under the Eighth Amendment. Even if it were, sex offender registration is neither cruel nor unusual. We further hold Ella’s right to free speech does not encompass the power to compel the state to facilitate a change of her legal name,” Grassl Bradley said.
Grassl Bradley, who took care to detail the forceful nature of Ella’s assault and the size and cognitive disparity between her and Alan, said the law is clear that she must remain on the sex offender registry and cannot petition the circuit court for a legal name change, but that does not truly prohibit her from expressing her gender identity, which she can do in a number of other ways.
“For example, nothing prohibits her from dressing in women’s clothing, wearing make-up, growing out her hair, or using a feminine alias,” she said. Under state law, Ella would have to register any alias with the Wisconsin Department of Corrections.
“Perhaps more importantly,” Grassl Bradley continued, “Ella’s suggestion that the state has no rational basis for keeping track of her is incredible,” given the facts in the record about her juvenile proceeding and the nature of her crime.
At arguments in February, Ella’s lawyer, state public defender Cary Bloodworth, repeated Ella’s case that every time she has to show her ID, she is forced to speak a name she does not want to speak and effectively out herself to a stranger, which amounts to government-compelled speech. Grassl Bradley didn’t buy that, saying the argument rested on “a faulty conception of expressive conduct.”
“The act of presenting identification, either by vocalizing her legal name, writing it down, or handing government documents bearing her legal name to someone else, has never been considered a form of expressive conduct in either legal precedent or in the historical record. The act of producing identification is conduct unprotected by the First Amendment,” she said.
“The state has not branded Ella with her legal name, and when Ella presents a government-issued identification card, she is free to say nothing at all or to say ‘I go by Ella.’”
Grassl Bradley was joined in the majority by Chief Justice Annette Ziegler and justices Patience Roggensack and Brian Hagedorn, all conservatives.
Justice Ann Walsh Bradley, joined by the court’s other two liberals in Rebecca Dallet and Jill Karofsky, wrote a dissenting opinion saying the majority’s First Amendment analysis “takes an overly restrictive view of expressive conduct and denigrates the import of a legal name” and “discounts the burdens Ella faces as a result of the restriction” on changing her name.
Walsh Bradley took issue with the majority’s reliance on 18th and 19th century sources to support its reasoning, as those sources and their authors could not have possibly conceived of the nuances of 21st century conceptions of individual rights.
“It is no wonder the majority finds no protection for Ella in these sources. At the time of the founding Black people could be considered property and women had no rights—transgender rights were the furthest thing from the founders’ minds,” Walsh Bradley said.
Citing well-known name changes like Cassius Clay to Muhammad Ali and Bruce Jenner to Caitlyn Jenner, Walsh Bradley said the majority wrongfully discounted the expressive power of a chosen name and considered it a matter that does not implicate the First Amendment in the way a religious name does.
“It is a fundamental way a person presents themselves to the world and is essential to a person’s identity,” she said. “Calling a person by that person’s chosen name indicates respect for that person’s dignity and autonomy.”
Grassl Bradley addressed parts of the dissent in her opinion, saying “these sentiments reflect the philosophy of living constitutionalism, which would rewrite the Constitution to reflect the views and values of judges.”
The conservative justice defended her historical analysis and originalism, saying “the alternative approach, embraced by the dissent, undermines democracy.”
When reached on Thursday, Bloodworth said she disagreed with the high court's decision and offered no other comment.
Follow @cnsjkelly
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
