By Joe Kelly | Courthouse News
MADISON, Wis. (CN) – The Wisconsin Supreme Court heard arguments on Thursday 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 identity. gender because she was registered as a sex offender as a minor.
In the underlying case, in 2016, a 15-year-old – identified by the pseudonym Ella – was convicted of sexually assaulting an acquaintance, also 15, with the help of a friend who put a hand over the victim’s mouth to keep him from screaming during the attack. The victim, called Alan, was autistic, blind in one eye, six inches shorter and more than 200 pounds lighter than Ella at the time, according to court documents.
Ella ultimately did not contest one count of sexually assaulting a child under 16. She was placed in Lincoln Hills School, a besieged juvenile detention center in Irma, Wisconsin, before the state Department of Corrections transferred her to Mendota Juvenile Treatment Center.
She requested the move in part because she was the target of assault due to her transition from a male identity to a female identity. She adjusted well to the new facility and saw several psychologists who, on balance, considered her to be at low risk of reoffending.
But Shawano County Circuit Court Judge William Kussel later denied Ella’s motion to have her juvenile sex offender registration suspended. Under Wisconsin law, sex offenders must register a legal name and any aliases they use, and they cannot 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 feminine identity. She also argues that the registry requirement, as it applies 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 up 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, argued that, as applied to Ella, it is unconstitutional to require her to register as a sex offender because that it forces her, including in circumstances where she has to use her ID card, to speak and present a name that does not match her gender identity, which amounts to government mandated speech.
“Every time she uses that ID,” Bloodworth said, whether it’s for air travel or buying Sudafed at a pharmacy, “she’s talking about something she doesn’t want to talk about.”
Several conservative justices challenged this notion early and often. Chief Justice Annette Ziegler questioned whether it was a First Amendment right to have a particular name, while Judge Brian Hagedorn wondered how he could be forced to have someone say ‘a legal name he doesn’t like or identify with whenever he’s required to, while also noting “the complete absence of cases that address this issue.”
“It is a question of fact. It’s a matter of what’s recognized by law,” Hagedorn said, adding that disclosing a legal name doesn’t require someone to express a belief or enjoy the name being disclosed.
Bloodworth argued that it is unconstitutional to essentially force Ella to come out as transgender every time she uses her ID card, which exposes her to harm and harassment. The government’s interest in tracking her as a sex offender is unaffected because her pseudonym is already on the registry, and that lack of negative effect is compounded by Ella’s low risk of re-offending, Bloodworth said.
Assistant Attorney General Abigail Potts has repeatedly acknowledged the uncomfortable burden Ella may face in being unable to legally change her name, she said, “but not all damage involves the constitution.” Ella’s freedom of speech is not infringed by the name change ban, not least because she can still technically go with whatever name she wants, Potts said.
Liberal-leaning judges Rebecca Dallet and Ann Walsh Bradley have consistently pushed back against this, saying a name is not just speech but an expression of who someone is as a person and that the state can downplay the charges imposed on Ella preventing her from changing. her name to match her gender identity.
The Assistant Attorney General countered that Ella can freely disagree with her legal name, can use the state-registered pseudonym as she chooses, and that while it is an uncomfortable burden, she does not have a First Amendment right to have the court let her legally change her name, which could negatively impact the government’s interest in tracking sex offenders.
Potts also noted that the case was procedurally different from similar civil rights cases, specifically referencing a 2019 Wisconsin federal trial on a transgender sex offender name change. Last year, the Seventh Circuit affirmed the district court’s finding in favor of the state’s attorney who denied a name change in that case.