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  • August 05, 2022

    Ban on Name Change Doesn’t Violate Sex Offender’s Constitutional Rights

    A state law that prohibits a transgender sex offender from legally changing her name does not violate the First and Eighth Amendments to the U.S. Constitution, the Wisconsin Supreme Court has ruled.

    Jeff M. Brown

    A Person Holds A Ballpoint Pen Poised Above The Name Section Of A Form 1040

    Aug.5 , 2022 – A state law that prohibits a transgender sex offender from legally changing her name does not violate the First and Eighth Amendments to the U.S. Constitution, the Wisconsin Supreme Court has ruled.

    In State v. C.G., 2022 WI 60 (July 7, 2022) the supreme court held (4-3) that the name-change prohibition did not constitute punishment for purposes of the Eighth Amendment’s ban on cruel and unusual punishment.

    The court also held that the First Amendment’s free speech clause did not require the state to allow the offender to legally change her name.

    Justice Rebecca Grassl Bradley wrote the majority opinion, joined by Chief Justice Anette Ziegler, Justice Patience Roggensack, and Justice Brian Hagedorn.

    Justice Hagedorn also wrote a concurring opinion. Justice Ann Walsh Bradley dissented, joined by Justice Rebecca Dallet and Justice Jill Karofsky.

    Required to Register

    When C.G. was 15 years old, he and another teenager sexually assaulted an autistic 14-year old boy. After the victim’s parents notified the authorities, the state filed a delinquency petition against C.G.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    C.G. pled no contest to one count of sexual assault of a child under the age of 16 and the Shawano County Circuit Court adjudicated C.G. as delinquent.

    The court found that C.G.’s offense clearly constituted a forceful act, and concluded that he did not meet one of the four criteria for avoiding having to register as a juvenile sex offender under Wis. Stat. section 301.45(1m)(a)1m..

    Name Change Prohibited

    At some point after he was adjudicated delinquent, C.G. realized that he was a transgender girl and adopted the name Ella. 

    One year later, after being adjudicated delinquent, Ella moved to stay the sex offender requirement.

    Ella argued that subjecting her to sex offender registration constituted cruel and unusual punishment under the Eighth Amendment and violated her right to free expression under the First Amendment because a provision of the registration scheme, section 301.47, prohibited her from changing legal name to reflect her transgender identity.

    The circuit court denied the motion and issued an order requiring Ella to register as a sex offender for 15 years. Ella appealed to the Wisconsin Court of Appeals; the appellate court affirmed the circuit court’s ruling.   

    Registration Scheme Not Punitive

    Justice R.G. Bradley began her opinion for the majority by concluding that requiring Ella to register as a sex offender did not violate the Eighth Amendment’s ban on cruel and unusual punishment because it didn’t constitute punishment.

    The legislative intent behind Wisconsin’s sex offender registration scheme was to protect the public, rather than to punish offenders, R.G. Bradley explained. She pointed out that in other state courts that have addressed the issue, all but one have held that sex offender registration schemes are not punitive.

    Ella acknowledged that courts have typically held that sex offender registration schemes are not punitive but argued that as applied to her, the Wisconsin scheme constituted cruel and unusual punishment.

    But Justice R.G. Bradley explained that under U.S. Supreme Court precedent, whether a statute is punitive requires an abstract analysis devoid of “‘the facts and circumstances of an individual defendant.’”

    Even if the law allowed Ella to mount an as-applied challenge, R.G. Bradley pointed out, she would not be able to show that requiring her to register as a sex offender constituted punishment.

    “Reporting requirements impose a nominal burden on liberty that directly serves the public safety purpose of the law,” Justice R.G. Bradley wrote.

    “Additionally, this court rejected the argument that limited public dissemination of a sex offender’s vital information constitutes ‘shaming.’”

    Alternate Means of Expressing Identity

    With regard to Ella’s First Amendment challenge, R.G. Bradley noted that there was nothing preventing Ella from using an alias to express her gender identity.

    Additionally, Justice R.G. Bradley reasoned, Ella was free to dress in women’s clothing, wear make-up, and wear her hair long. Moreover, R.G. Bradley pointed out, the state had a rational basis in prohibiting Ella from changing her legal name, so that it could keep track of her.

    R.G. Bradley pointed out that of the few courts that had considered similar First Amendment claims, none had held that a ban on changing one’s legal name by itself implicated a person’s free-speech rights.

    Justice R.G. Bradley explained that Ella failed to demonstrate that name-change prohibition in section 301.47 infringed her expressive conduct.

    “When Ella presents herself to the world as a woman, her conduct is expressive, but it becomes no less or more expressive depending on her legal name,” R.G. Bradley wrote. “The expressive component of her transgender identity is not created by the legal name printed on her identification but by the various actions she takes to present herself in a specific manner.”

    If the First Amendment granted Ella the right to change her legal name in the absence of a compelling state interest prohibiting the change, Justice R.G. Bradley wrote, “the very point of printing identifying information on documents would be undermined.”

    Concurrence: Be Cautious with Pronouns

    In his concurrence, Justice Hagedorn argued that the majority analyzed the Eighth Amendment claim improperly, noted the “limited nature” of the court’s resolution of the First Amendment challenge, and questioned the majority’s “editorial decision” to use female pronouns when referring to Ella throughout the opinion.

    “Without question, C.G. should be treated with the same dignity and respect as any other litigant before this court,” Justice Hagedorn wrote.

    “But I believe we would do well to remain scrupulously neutral rather than assume that pronouns are for choosing. These matters of grammar have downstream consequences that counsel caution, particularly as a court of law where such decisions could have unknown legal repercussions.”

    Dissent: Name Is Expressive Conduct

    Justice A.W Bradley began her dissent by agreeing that Ella’s Eighth Amendment claim must fail. But she argued that the majority had taken a too narrow view of the expressive conduct under the First Amendment.

    The majority was incorrect to look to 19th century precedent and other legal sources in its examination of the law of name changes, A.W. Bradley argued.

    “Societies evolve,” Justice A.W. Bradley wrote. “Instead of looking backward to esoteric sources to define the contours of modern existence, we should instead look, as we do in other contexts, to ‘evolving standards of decency hat mark the progress of a maturing society.’”

    Justice A.W. Bradley wrote that a person’s name “can convey a person’s family history, cultural heritage, or religious devotion … It is a fundamental way a person presents themselves to the world and it essential to a person’s identity.”

    Prohibition Fails Test

    A.W. Bradley argued that the name-change prohibition did infringe on expressive content and should be subject to intermediate scrutiny, meaning that it was constitutional only if it was narrowly tailored to serve a significant governmental interest. 

    Section 301.47 failed that test, Justice A.W. Bradley argued.

    The state failed take into account the burden on Ella in requiring her to use her legal male name, A.W. Bradley argued. And besides, she reasoned, it would be easy for the state to keep track of Ella if she changed her legal name, given that C.G.’s alias of “Ella” had been recorded in the sex offender database.

    “All that a name change would seemingly require from law enforcement’s perspective is to switch Ella’s current legal name with an alias that is already on file,” Justice A.W. Bradley wrote.




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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2022 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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