By Joe Kelly | Courthouse News
MADISON, Wis. (CN) — The Wisconsin Supreme Court on Thursday heard arguments in a case involving whether a transgender woman’s constitutional protections are implicated by the state barring her from changing her legal name to match her gender identity because she was registered as a sex offender as a juvenile.
In the underlying case, in 2016, a 15-year-old – identified by the alias Ella – was found to have held down sexually assaulted an acquaintance, also 15, with the assistance of a friend who put a hand over the victim’s mouth to prevent him from yelling during the assault. The victim, called Alan, was autistic, blind in one eye, and six inches shorter and more than 200 pounds lighter than Ella at the time, according to court documents.
Ella ultimately pleaded no contest to one count of sexual assault of a child under 16 years of age. She was placed at the Lincoln Hills School, an embattled juvenile detention center in Irma, Wisconsin, before the state Department of Corrections moved her to the Mendota Juvenile Treatment Center.
She petitioned for the move in part because she was a target for aggression due to her transitioning from a male to a female identity. She adjusted well at the new facility and consulted with multiple psychologists who, all told, deemed her a low risk for re-offense.
But Shawano County Circuit Court Judge William Kussel later 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.
In that case and on appeal, Ella, now 19, charged 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 contends the registry requirement, as applied to her, constitutes cruel and unusual punishment under the Eighth Amendment.
The Wisconsin Court of Appeals disagreed on both counts and affirmed the circuit court order. The Wisconsin Supreme Court took on the case in April 2021, leading to Thursday’s arguments.
Cary Bloodworth, an assistant public defender and member of the Madison-based nonprofit Community Justice firm, argued that, as applied to Ella, it is unconstitutional to require her to register as a sex offender because it forces her, including in circumstances where she has to use her ID, to speak and present a name that doesn’t match her gender identity, which amounts to government-compelled speech.
“Every time she uses that ID,” Bloodworth said, whether to travel on an airplane or buy Sudafed at a pharmacy, “she is speaking something that she doesn’t want to be speaking.”
Multiple conservative justices challenged that notion early and often. Chief Justice Annette Ziegler questioned whether it is a First Amendment right to have any particular name, while Justice Brian Hagedorn wondered how it could be compelled speech to make someone say a legal name they don’t like or identify with whenever they are required to, while also noting the “complete absence of any cases that address this question.”
“It’s a question of fact. It’s a question of what’s recognized under the law,” Hagedorn said, adding that disclosing a legal name does not ask someone to express a belief or enjoy the name being disclosed.
Bloodworth maintained it is unconstitutional to essentially force Ella to out herself as transgender every time she uses her ID, which exposes her to harm and harassment. The government’s interest in tracking her as a sex offender is not affected because her alias is already in the registry, and that lack of negative affect is compounded by Ella’s low risk for re-offense, Bloodworth said.
Assistant Attorney General Abigail Potts repeatedly acknowledged the uncomfortable burden Ella may have to deal with by being unable to legally change her name, she said, “but not every harm implicates the constitution.” Ella’s freedom of speech is not violated by being banned from changing her name, not in the least because she can still technically go by the name she wants, Potts said.
Liberal-leaning Justices Rebecca Dallet and Ann Walsh Bradley consistently pushed back on that, offering that a name is not only speech but an expression of who someone is as a person and the state may be minimizing the burdens placed on Ella by barring her from changing her name to fit her gender identity.
The assistant attorney general countered that Ella can freely disagree with her legal name, can go by the alias registered with the state as she wishes, and that, while an uncomfortable burden, she does not have a First Amendment right to get the court to let her legally change her name, which could negatively affect the government’s interest in tracking sex offenders.
Potts also noted the case was different procedurally from similar civil rights cases, specifically referencing a 2019 Wisconsin federal lawsuit over a transgender sex offender name change. Last year, the Seventh Circuit affirmed the district court’s finding in favor of a state’s attorney who denied a name change in that case.