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July 8, 2022

Split Wisconsin Supreme Court rejects transgender woman's arguments for changing her name on sex offender registry

The Wisconsin Supreme Court issued a notable 4-3 ruling yesterday in State v. CG, 2022 WI 60 (Wisc. July 7, 2022) (available here), rejecting interesting arguments regarding the state's sex offender registry. Here is part of the start of the opinion of the court:

When Ella was 15 years old, she and another teenager, Mandy, sexually assaulted their supposed friend, 14-year-old Alan ... [and state] law required Ella to register as a sex offender.... Ella filed a postdispositional motion to stay registration....

Ella's legal arguments are grounded in her gender identity. She entered the juvenile justice system as a male. Sometime thereafter, Ella realized she was a transgender girl, i.e., a biological male who self-identifies as a girl. Ella has a traditionally masculine legal name she believes is incompatible with her gender identity.  Ella complains she is bound to "out herself" as a male anytime she is required to produce her legal name.  If Ella were not a sex offender, she could petition the circuit court for a legal name change under Wis. Stat. § 786.36 (2019–20);  however, another statute, Wis. Stat. § 301.47(2)(a), prohibits her from filing such a petition because she is a sex offender, although the State argues it does not prohibit her from using an alias provided she notifies the Department of Corrections (DOC) of her intent to do so in advance.

Ella raises two legal issues for our consideration.  She argues requiring her to register as a sex offender: (1) constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution as applied to her; and (2) violates her right to free speech under the First Amendment to the United States Constitution. Both arguments rest on Ella's inability to change her legal name to conform to her gender identity.

We reject both arguments.  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.

Here is a key paragraph from the start of the dissent authored by Justice Bradley:

Although I agree that Ella's Eighth Amendment claim fails, I write separately to address the majority's First Amendment analysis and conclusions. It cuts short the First Amendment analysis by determining that the First Amendment isn't even implicated by the name change ban that accompanies Ella's registration as a sex offender. In making this determination, the majority takes an overly restrictive view of expressive conduct and denigrates the import of a legal name.

July 8, 2022 at 12:32 PM | Permalink


The big question is who are the three judges in the dissent?

The criminal justice system, and all of society, needs to stop contributing to the mental illness of those with gender dysphoria.

Posted by: TarlsQtr | Jul 8, 2022 2:57:54 PM

Not knowing how the sex offender registry works in terms of searches by members of the public, this seems like a difficult case (and perhaps a poorly conceived law).

The medical consensus is that the healthiest treatment is gender reassignment. The issue is how to make the registry work for those who need to change their gender.

I have trouble believing that the registry bars all name changes. If a woman on the registry gets married, does she have to keep her maiden name as her legal name? What about if she gets divorced, is she barred from reverting back to her maiden name because she was convicted under her married name?

If you do permit name changes for marriage and divorce, I think you have to permit them for gender reassignment. The system merely needs to require notice of the name change (and if you are petitioning the court most states already have some notice requirements to avoid fraud) and any renewal verification forms merely needs to require the registrant to list the name(s) under which they have qualifiying convictions as well as the current name.

Posted by: tmm | Jul 11, 2022 10:24:26 AM

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