State v. C. G. ( 2022 )

2022 WI 60SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP2205
COMPLETE TITLE: In the interest of C. G., a person under the age
of 18:
State of Wisconsin,
Petitioner-Respondent,
v.
C. G.,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 396 Wis. 2d 105, 955 N.W.2d 443PDC No:2021 WI App 11 - Published
OPINION FILED: July 7, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 17, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Shawano
JUDGE: William F. Kussel, J.
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court with respect to all parts except ¶¶6 and 36–46, in
which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined, and
an opinion with respect to ¶¶6 and 36–46, in which ZIEGLER,
C.J., and ROGGENSACK, J., joined. HAGEDORN, J., filed a
concurring opinion. ANN WALSH BRADLEY, J., filed a dissenting
opinion, in which DALLET and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Cary E. Bloodworth, assistant state public defender.
There was an oral argument by Cary E. Bloodworth.
For the respondent-appellant-petitioner, there was a brief
filed by Scott E. Rosenow, assistant attorney general, with whom
on the brief was Joshua L. Kaul, attorney general. There was an
oral argument by Abigail Potts, assistant attorney general.
An amicus curiae brief was filed by Abigail L. Churchill,
Hayley I. Archer, and Trans Law Help Wisconsin, Madison and
Hawks Quindel, S.C., Madison, for Trans Law Help Wisconsin and
Hawks Quindel, S.C.
An amicus curiae brief was filed by Matthew S. Pinix,
Marsha L. Levick, and Pinix Law, LLC, Milwaukee, and Juvenile
Law Center, Philadelphia, for Juvenile Law Center, national
Center for Lesbian Rights, Lambda Legal Defense and Education
Fund, and Eric S. Janus.
An amicus curiae brief was filed by Matthew E. Kelley John
A. Knight, Laurence J. Dupuis, and Ballard Spahr LLP,
Washington, D.C., American Civil Liberties Union of Wisconsin
Foundation, Inc., Milwaukee, and American Civil Liberties Union
Foundation LGBT & HIV Project, Chicago, for the American Civil
Liberties Union Foundation and American Civil Liberties Union of
Wisconsin Foundation.
2
2022 WI 60NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP2205-CR
(L.C. No. 2016JV38)
STATE OF WISCONSIN : IN SUPREME COURT
In the interest of C. G., a person under the
age of 18:
State of Wisconsin,
FILED
Petitioner-Respondent, JUL 7, 2022
v. Sheila T. Reiff
Clerk of Supreme Court
C. G.,
Respondent-Appellant-Petitioner.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court with respect to all parts except ¶¶6 and 36–46, in
which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined, and
an opinion with respect to ¶¶6 and 36–46, in which ZIEGLER,
C.J., and ROGGENSACK, J., joined. HAGEDORN, J., filed a
concurring opinion. ANN WALSH BRADLEY, J., filed a dissenting
opinion, in which DALLET and KAROFSKY, JJ., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. When Ella was 15 years
old, she and another teenager, Mandy, sexually assaulted their
No. 2018AP2205-CR
supposed friend, 14-year-old Alan.1 The circuit court
adjudicated Ella delinquent.2 Ella moved to stay juvenile sex
offender registration, arguing she and her offense satisfied the
four criteria in Wis. Stat. § 301.45(1m)(a)1m. (2017–18). The
court denied her motion, finding the offense was "clearly a
forceful act"; therefore, it concluded Ella's offense could not
satisfy one of the criteria. As a result, the law required Ella
to register as a sex offender. Less than a year later, Ella
filed a postdispositional motion to stay registration. She
seeks review of a court of appeals decision3 affirming the
circuit court's denial of this motion.
¶2 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
1 The facts underlying this case involve three juveniles,
for whom we use pseudonyms. Cf. Wis. Stat. § (Rule) 809.81(8)
(2019–20).
2 The Honorable William F. Kussel, Jr., Shawano County
Circuit Court, presided.
3 State v. C.G., 2021 WI App 11, 396 Wis. 2d 105, 955
N.W.2d 443.
2
No. 2018AP2205-CR
produce her legal name.4 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);5 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.
¶3 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.
¶4 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
4See out, Merriam-Webster's Collegiate Dictionary (11th ed.
2014) (defining "out" as "to identify publicly as being such
secretly" and "esp : to identify as being a closet
homosexual[.]").
5All subsequent references to the Wisconsin Statutes are to
the 2019–20 version.
3
No. 2018AP2205-CR
facilitate a change of her legal name. We therefore affirm the
decision of the court of appeals.
I. BACKGROUND
A. An Overview of Ella, the Perpetrator
¶5 Ella, who is now 22, questioned her gender identity
throughout her adolescence. After the State filed a delinquency
petition against Ella, she began to express "thoughts of
transitioning." By the time the court held a hearing on Ella's
first motion to stay sex offender registration, she had started
transitioning. At this point, she thought of herself as a
transgender girl and began self-identifying and attempting to
present her appearance in a manner consistent with her newfound
self-awareness.6 The circuit court found she is now fairly open
about her status as a member of the "LGBTQ"7 community.
¶6 Because Ella entered the juvenile justice system as a
male, many relevant records——including records prepared at the
direction of Ella's appellate counsel——refer to her using male
pronouns.8 When quoting those records, we use those pronouns.
6 Ella has not filed a legal name change petition under Wis.
Stat. § 786.36. Before the court of appeals, the State argued
Ella's First Amendment claim was not ripe because the "claim is
based on the possibility that she might someday unsuccessfully
try to change her name." C.G., 396 Wis. 2d 105, ¶29 n.7. The
court rejected this argument because Ella is prohibited by Wis.
Stat. § 301.47(2)(a) from changing her legal name. Id. The
State has not raised ripeness before us, so we address it no
further.
7 LGBTQ stands for Lesbian, Gay, Bisexual, Transgender, and
Queer or Questioning.
8 See, e.g., R. 95:3 n.1 ("Because [Ella] is still legally
considered to be male, and it is as a male that he entered the
4
No. 2018AP2205-CR
Elsewhere in our opinion, however, we use female pronouns out of
respect for Ella's individual dignity. All parties and amici
curiae used her preferred pronouns in their briefing, and the
court of appeals used them in its published opinion.9
¶7 Ella's size is critical to understanding the forceful
nature of the sexual assault. The circuit court found Ella was
"pretty massive." Although we do not have anything in the
record giving Ella's exact dimensions at the time of the sexual
assault, a youth justice case worker testified at a hearing a
little over a year later that Ella was 6-foot-5-inches tall and
weighed 345 pounds, taking this information from a face sheet
criminal justice system, he is referred to throughout the
evaluation report [by his legal name], and as a male.").
9 We recognize the use of preferred pronouns is a
controversial issue. No law compels our use of Ella's preferred
pronouns; we use them voluntarily. Our decision to do so bears
no legal significance in this case, nor should it be construed
to support their compulsory use.
Although cautioning courts to "remain scrupulously neutral"
with respect to the use of pronouns, Justice Brian Hagedorn does
not recognize in his concurrence that referring to Ella as C.G.
will be seen as a partisan choice by many readers. Concurrence,
¶101. The "ontological and moral question[]" over pronouns is
neither legal in nature nor within the scope of the issues
presented. See id., ¶99. We join the parties and the court of
appeals in referring to Ella using her preferred pronouns. In
addition to showing respect for Ella's individual dignity, using
the same convention as the parties ensures we "remain
scrupulously neutral"——in contrast, Justice Hagedorn uses a
convention even the State, which is adversarial to Ella, has
chosen not to use. Id., ¶101. The only alternatives to
choosing between masculine and feminine pronouns in this opinion
would either offend the rules of grammar (the singular "they")
or produce a stilted writing (exclusive use of proper nouns).
5
No. 2018AP2205-CR
prepared by the DOC. A report submitted by Ella's appellate
counsel said she was 6-foot-4-inches tall and weighed 300
pounds.
B. An Overview of Alan, the Victim
¶8 In contrast to Ella, Alan is a heterosexual male. He
had minimal prior sexual knowledge before Ella sexually
assaulted him. He did not know what the word "ejaculated" meant
when a law enforcement officer questioned him about the assault.
The officer had to rephrase his question, asking "if anything
came out of [Alan's] penis" as a result of Ella's contact with
it.
¶9 Alan was diagnosed with autism between one-and-a-half
and two years of age. When he was four months old, a medical
condition necessitated the surgical removal of the lens of his
left eye, leaving him blind in that eye. For nearly all of
Alan's life, he has needed physical and speech therapy. His
mother testified at the dispositional hearing Alan was 5-foot-
10-inches tall and weighed 110 pounds. Based on this testimony,
the circuit court inferred Alan was "pretty frail[.]"
¶10 Alan's mother further testified his autism
significantly affects his learning and social abilities.
Specifically, his mother testified he has done poorly in school,
has had an Individualized Education Program, and has needed
special classes. At the time of the assault, Alan was a ninth-
grader but his mother explained he worked at a sixth-grade level
and was "nowhere near where he should be with the rest of his
peers."
6
No. 2018AP2205-CR
¶11 Alan's mother also explained he has never had much of
a "social life[.]" According to her, people often become
annoyed by Alan because he does not understand social cues, such
as when to stop a conversation. As a result, he has "had a hard
time making friends." Part of the tragedy of this case is that
Alan's first "supposed friends," or more accurately, "the first
group of people" with whom he socialized, unsupervised by
adults, took advantage of him. She explained the assault has
had a profound impact on his life, causing Alan grave
embarrassment.
C. The Sexual Assault
¶12 Alan appears to have met Ella through Mandy, a female
classmate. All three juveniles were in the ninth grade at the
time of the sexual assault; however, Ella was fifteen and Alan
was fourteen. According to the officer's narrative attached to
the delinquency petition, in early 2016, Mandy's sister picked
up Mandy, Ella, and Alan and drove them to Mandy's parents'
house. The four of them went into Mandy's bedroom where they
talked and texted. Eventually, Mandy's sister left to go to
work. Whether Mandy's parents were home is unclear, but the
petition suggests Alan believed they were.
¶13 As night time approached, Ella began sending sexually-
explicit Facebook messages to Alan. She first asked Alan "if he
had ever received 'head' before." Ella then sent at least two
messages about giving Alan "head." Alan repeatedly told Ella he
did not want her to give him "head." Alan showed the messages
to Mandy. In response, Mandy told Alan he should let Ella "do
7
No. 2018AP2205-CR
it because it feels great." Alan told her he "did not want to
get 'head' from a guy."
¶14 Despite Alan's explicit rebukes, Ella "pushed" him
onto the bed. Ella sat on his legs while Mandy restrained his
arms. Ella then pulled his pants and underwear down. Alan
tried yelling for help, hoping Mandy's parents were home and
would hear his cries; however, Mandy placed one of her hands
over Alan's mouth. Ella then put her mouth around Alan's penis.
Ella's appellate counsel characterizes the assault as
"brief[] . . . oral contact with a male friend's penis against
his wishes," but this assault was a heinous act that forever
changed Alan's life.
¶15 Afterward, Ella and Mandy told Alan not to tell anyone
what they had done to him. Alan did not say anything because he
was embarrassed. Ella, apparently, was not: she told at least
two classmates. She also taunted Alan via Facebook Messenger:
Ella: Remember that time I gave you head??
Alan: It was fucking unconfortable.
Ella: Uncomfortable*
Alan: Com
Ella: Cum ?? Well anyways if it wasn't for me being
nice, I was gonna do it to you in the Garage
Just saying
Alan: Yea ik that's y I felt weird
Ella: you know you liked it.
Alan: No
8
No. 2018AP2205-CR
¶16 The high school rumor mill began to turn, and word got
back to Alan that his classmates knew he had been sexually
assaulted by Ella. Alan had various conversations via Facebook
Messenger indicating he had been assaulted. A few months after
the sexual assault, Alan's parents discovered the Facebook
messages between Alan and his classmates indicating he had been
assaulted and notified law enforcement.
D. Procedural History
¶17 The State filed a delinquency petition against Ella,
alleging one count of sexual assault of a child under the age of
16 and one count of disorderly conduct (both counts as a party
to the crime). The circuit court accepted Ella's no-contest
plea to the sexual-assault count and dismissed but read in the
disorderly-conduct count.
¶18 At a dispositional hearing, the circuit court
committed Ella to the DOC for six to ten months, some of which
was spent at Lincoln Hills, a secure juvenile correctional
facility. The court described the sexual assault as "a violent
attack" because Alan was "held down by two individuals," and it
was "clearly done against [his] will[.]" The court also
emphasized Ella's physical stature——she's a large person, and
she preyed on a frail victim. It also noted Alan's
disabilities. It found placement in the home would be "contrary
to the welfare of the juvenile and the community" because Ella
"engaged in a forceful delinquent act to a child. He
jeopardized and victimized this child. [Ella] needs to have
intensive treatment to help him develop a better thought process
9
No. 2018AP2205-CR
to where he can improve his decision making skills and reduce
his impulsive behaviors."
¶19 Ella filed a motion to stay sex offender registration.
The circuit court held a hearing, denied the motion, and ordered
Ella to register as a sex offender for 15 years. In March 2018,
Ella filed a postdisposition motion to stay sex offender
registration. The circuit court denied the postdisposition
motion, concluding that sex offender registration is appropriate
and constitutional.
¶20 The circuit court concluded sex offender registration
is not punishment under the Eighth Amendment. The circuit
court's discussion of Ella's First Amendment claim is more
complicated because Ella couched her First Amendment claim in
terms of a violation of substantive due process. She argued,
"[s]ubstantive due process protects against government action
that is arbitrary and wrong regardless of the fairness of the
procedure used to implement them. To prevail on a substantive
due process claim, the claimant must show the infringement of
one or more liberty interests."10 She then listed four "liberty
interests" in the following order, all under the heading
"Wisconsin's juvenile SOR provisions violate substantive due
process":
1. Reputation.
2. Right to travel/freedom of movement.
3. Freedom of speech/expression.
10 Quotation marks omitted.
10
No. 2018AP2205-CR
4. Informational privacy.
Under the subheading "[f]reedom of speech/expression," Ella
focused her discussion on substantive due process. For example,
she argued:
Few decisions are as deeply personal and important as
a person's right to live in a manner consistent with
their gender identity. "The Constitution promises
liberty to all within its reach, a liberty that
includes certain specific rights that allow
persons . . . to define and express their identity."
Obergefell v. Hodges, 135 S. Ct. 2584, 2593 (2015).
Constitutionally protected liberty interests are those
that implicate "individual dignity and autonomy"——
i.e., decisions or actions that "shape an individual's
destiny." Id. at 2597, 2599. A person's core
internal sense of their own gender, and what that
means for their everyday life, is profoundly central
to their personal identity in ways the Constitution
protects.[11]
This discussion, which included multiple references to
Obergefell, a landmark substantive due process case,
demonstrates Ella made a different claim before the circuit
court than on appeal.
¶21 The circuit court understood itself to be adjudicating
a substantive due process claim, not a free speech claim. It
provided a thorough, written opinion explaining why the law did
not "shock the conscience . . . or interfere[] with rights
implicit to the concept of ordered liberty."12 It concluded,
"[t]he name change restriction is reasonably related to the
purpose of the statute; registration by its very nature needs to
11 Ellipsis in the original.
12 Ellipsis in the original.
11
No. 2018AP2205-CR
keep accurate records of its registrants." Additionally, it
noted, "[t]he court understands that it could be emotionally
difficult for an LGBTQ person to have to reveal their LGBTQ
status; however, . . . it does not appear that [Ella] has taken
any action to hide her LGBTQ status."
¶22 Ella appealed and the court of appeals affirmed. On
appeal, Ella did not mention substantive due process at all,
instead focusing on her cruel and unusual punishment claim and
converting her substantive due process challenge into a free
speech claim. The court of appeals rejected Ella's Eighth
Amendment argument. First, it concluded sex offender
registration is not punishment based on well-established
precedent. State v. C.G., 2021 WI App 11, ¶¶41–47, 396
Wis. 2d 105, 955 N.W.2d 443. Second, it concluded Ella cannot
bring an as-applied challenge to circumvent this precedent.
Id., ¶¶44–47. The court of appeals also rejected her First
Amendment claim, holding Wis. Stat. § 301.47(2)(a) does not
implicate the freedom of speech. Id., ¶¶26–32. Even if free
speech were at issue, the court of appeals determined the law
would be at most a content-neutral restriction on speech, and it
would survive intermediate scrutiny because it "is sufficiently
tailored to achieve the State's important interest in
efficiently tracking registered sex offenders." Id., ¶¶33–40.
Ella filed a petition for review, which we granted.
II. STANDARD OF REVIEW
¶23 The constitutionality of a statutory scheme is a
question of law, which we review independently while benefitting
12
No. 2018AP2205-CR
from the analyses of the lower courts. T.L.E.-C. v. S.E., 2021
WI 56, ¶13, 397 Wis. 2d 462, 960 N.W.2d 391 (citations omitted);
see also State v. Ninham, 2011 WI 33, ¶44, 333 Wis. 2d 335, 797
N.W.2d 451 (citation omitted).
III. ELLA'S CRUEL & UNUSUAL PUNISHMENT CLAIM
¶24 The Eighth Amendment states: "Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." Ella's Eighth Amendment claim
fails for two reasons. First, sex offender registration is not
a "punishment" within the meaning of that word as it is used in
the Eighth Amendment. Second, even if it were, sex offender
registration is neither cruel nor unusual.
A. Sex Offender Registration Is Not a Punishment
¶25 "A deprivation cannot violate the Eighth Amendment's
prohibition against 'cruel and unusual punishment' unless it
first qualifies as 'punishment.'" Millard v. Camper, 971
F.3d 1174, 1181 (10th Cir. 2020) (citing Carney v. Okla. Dep't
of Public Safety, 875 F.3d 1347, 1352 (10th Cir. 2017)). To
determine whether sex offender registration is a punishment,
courts look first to the intent of the legislature; if the
intent is not to punish, only the "clearest proof" of the law's
punitive effects can establish it constitutes punishment. Id.(quoting Smith v. Doe, 538 U.S. 84, 92 (2003)). At the effects
stage, courts consider various factors. Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 168 (1963). These factors include, but
are not limited to: (1) "whether [the sanction] has
historically been regarded as a punishment"; (2) "whether its
13
No. 2018AP2205-CR
operation will promote the traditional aims of punishment——
retribution and deterrence"; and (3) "whether an alternative
purpose [i.e., a nonpunitive purpose] to which it may rationally
be connected is assignable[.]" Id. at 168–69.
¶26 Following the lead of almost every other court to have
addressed the issue, this court in State v. Bollig determined
the legislative intent of the sex offender registration scheme
is not punitive, nor are its effects sufficiently punitive to
constitute punishment. 2000 WI 6, 232 Wis. 2d 561, 605
N.W.2d 199. The case arose in the context of a motion for plea
withdrawal. Id., ¶1. The petitioner contended his no-contest
plea to attempted sexual assault was defective because the
circuit court did not inform him that, as a result of his plea,
he would be required to register as a sex offender. Id.
Whether the plea was defective turned on whether sex offender
registration is a collateral consequence of the criminal
conviction or a punishment. Id., ¶16 ("Courts are
constitutionally required to notify defendants of the 'direct
consequences' of their pleas. . . . In contrast, defendants do
not have a due process right to be informed of the collateral
consequences of their pleas. . . . In essence, we must
determine whether the registration requirement constitutes
punishment." (citations omitted)).
¶27 This court began its analysis by noting, "[o]f the
states that have addressed whether registration of sex offenders
is punishment, all but one have answered in the negative." Id.,
¶18. The general consensus among the courts of this nation at
14
No. 2018AP2205-CR
that time continues to prevail: the intent of sex offender
registration requirements is to protect the public, not punish
the offender, and sex offender registration is not, in effect,
so punitive as to constitute punishment. Id., ¶20 (citations
omitted); see Smith, 538 U.S. at 96, 105 (concluding Alaska's
Sex Offender Registration Act is nonpunitive in intent and
effect); see also Hope v. Comm'r of Ind. Dep't of Corr., 9
F.4th 513, 534 (7th Cir. 2021) (concluding Indiana's sex
offender registry is nonpunitive); Belleau v. Wall, 811
F.3d 929, 937 (7th Cir. 2016) (concluding Wisconsin's
requirement that sex offenders subject to civil commitment wear
a GPS monitoring device 24/7 is not a punishment, reasoning
"[t]he monitoring law is not punishment; it is prevention"
(citations omitted)); Millard, 971 F.3d at 1181 ("This court has
twice, and the [United States] Supreme Court has once,
determined that sex-offender registration requirements were not
'punishments' because their respective legislatures lacked
punitive intent and their application lacked punitive effect."
(citations omitted)).
¶28 As this court explained in Bollig, "[c]ourts that have
determined that sex offender registration is not punitive have
held that the underlying intent is public protection and
safety. . . . Likewise, Wisconsin's registration statute does
not evince the intent to punish sex offenders[.]" Bollig, 232
Wis. 2d 561, ¶¶20–21 (citations omitted)). The intent of the
law is "to protect the public and assist law enforcement." Id.,
¶21. "Registration statutes assist law enforcement agencies in
15
No. 2018AP2205-CR
investigating and apprehending offenders in order to protect the
health, safety, and welfare of the local community and members
of the state." Id., ¶20 (citing State v. Burr, 598 N.W.2d 147,
153 (N.D. 1999); State v. Ward, 869 P.2d 1062, 1073 (Wash.
1994)).
¶29 Legislative history, examined in Bollig, confirms this
common sense construction of sex offender registration. Id.,
¶22 (examining the drafting file of 1995 Wisconsin Act 440,
which substantially revised the sex offender registration
statute and renumbered it to Wis. Stat. § 301.45). From the
drafting file, "[t]he Executive Summary of Recommendations
indicates that the intent underlying the legislation related to
community protection." Id. (citing Wis. DOC, Sex Offender
Community Notification i (1994)). "In addition, a stated goal
included the balancing of community protection with the
offender's community re-integration needs." Id. (citing Sex
Offender Community Notification, at 1). This summary also
reflected a concern that sex offenders not be subject to
"vigilante-ism." Id., ¶25 (citing Sex Offender Community
Notification, at 2).
¶30 The statute primarily at issue in this case, Wis.
Stat. § 301.47, which prohibits sex offenders from changing
their legal name, was enacted post-Bollig, but its legislative
history confirms it is likewise not intended as a punishment.
Senator Alberta Darling provided written testimony in support of
the bill, explaining its purpose was to "close[] a major
loophole" that had been plaguing the effectiveness of the sex
16
No. 2018AP2205-CR
offender registry. Written Testimony of Senator Alberta Darling
in Favor of AB 59 and AB 60 ((Written Testimony), Senate
Committee on Education, Ethics & Elections (Mar. 27, 2003). She
noted, "[l]ast fall the Department of Corrections reported that
it is uncertain of the location of nearly 2,900 of the 11,000
offenders on the registry." Id.; Press Release, Darling to Push
for Sex Offender Notification Changes, Office of Senator Alberta
Darling (Oct. 9, 2002) ("The spirit and the intent of the
original sexual predator notification law is being usurped by
those who don't care about the penalties that are currently in
place[.]").13 She said the legislature had not anticipated the
extent to which sex offenders would try to outwit the
registration requirements. See Written Testimony. In
particular, she noted, "[t]he Waukesha Police
Department . . . encountered an offender who changed his name to
avoid the registry." Id. Therefore, she thought the bill was
necessary "because . . . this legislation will help protect
children from harm and keep our communities safe." Id. See
generally Jim Collar, Strengthening the Offender Registry,
Oshkosh Northwestern, Mar. 4, 2003, at 1B (explaining "some
Wisconsin officials want[ed] to make the [sex offender
registration] laws stronger" because "public safety [was]
hanging in the balance").
Senator Darling did not describe registration as a
13
penalty; she did discuss statutory penalties for failing to meet
registration requirements.
17
No. 2018AP2205-CR
¶31 In Bollig, after concluding the legislative intent was
regulatory in nature, not punitive, this court examined the
effect of the law. The petitioner argued, "registration and the
subsequent public dissemination of information under [Wis.
Stat.] § 301.46 constitute punishment, akin to traditional
shaming punishments used throughout history to degrade those who
have overstepped the boundaries imposed by law." Bollig, 232
Wis. 2d 561, ¶23 (citations omitted). Specifically, the
petitioner noted registration often results "in ostracism,
humiliation, and retaliation[.]" Id. This court rejected that
argument because "§ 301.46 . . . does not automatically grant
the public carte blanche access to the information." Id., ¶24.
"[T]he selective release of information underscores that public
protection, and not punishment, represents the core concern."
Id.
¶32 This court recognized "that sex offenders have
suffered adverse consequences, including vandalism, loss of
employment, and community harassment[.]" Id., ¶26.
Nevertheless, these effects "do not obviate the remedial and
protective intent" of registration. Id. (citations omitted).
"Simply because registration can work a punitive effect, we are
not convinced that such an effect overrides the primary and
remedial goal underlying Wis. Stat. § 301.45 to protect the
public." Id.¶33 A few years before Bollig, this court decided State v.
Hezzie R., 219 Wis. 2d 848, 580 N.W.2d 660 (1998), amended on
denial of reconsideration, 220 Wis. 2d 360. In that case, a
18
No. 2018AP2205-CR
juvenile argued the Juvenile Justice Code (JJC) violated his
state and federal constitutional rights. Id. at 869. The
answer to some of the issues he raised turned on whether a
juvenile proceeding was "a criminal prosecution." Id. at 871,
877. To support his argument that "for all intents and
purposes" the JJC was a "criminal code," he argued a juvenile
"is potentially subject to . . . a possible need to register as
a sex offender[.]" Id. This court rejected that argument,
reasoning, "[t]he requirements of [Wis. Stat.]
§ 301.45 . . . are only imposed on a juvenile who is adjudicated
delinquent where the particular facts of the case and concerns
for public safety dictate it. This is not criminal
punishment[.]" Id. at 881; see also State v. Jeremy P., 2005 WI
App 13, ¶15, 278 Wis. 2d 366, 692 N.W.2d 311 ("In light of our
supreme court's conclusions in both Bollig and Hezzie, we cannot
conclude that Jeremy has proven that Wis. Stat.
§§ 938.34(15m)(bm) and 301.45(1m) are unconstitutional under the
Fifth, Sixth and Fourteenth Amendments of the United States
Constitution and article I, sections 7 and 8 of the Wisconsin
Constitution."). Hezzie R. is consistent with the rule in most
jurisdictions. See, e.g., United States v. Shannon, 511 F.
App'x 487, 492 (6th Cir. 2013) (concluding Ohio's sex offender
registration "as applied to juvenile delinquents" is not a
punishment).
¶34 Ella acknowledges "[s]ex offender registration has not
traditionally been viewed as punishment"; however, she seeks to
circumvent longstanding precedent by arguing, as applied to her,
19
No. 2018AP2205-CR
sex offender registration constitutes cruel and unusual
punishment. The law, however, does not recognize as-applied
challenges under the Eighth Amendment as to whether a statute is
punitive. Whether a statute is punitive is determined in the
abstract, without reference to "the facts and circumstances of
an individual defendant." State v. Schmidt, 2021 WI 65, ¶30,
397 Wis. 2d 758, 960 N.W.2d 888 (citing Hudson v. United States,
522 U.S. 93, 100 (1997)); see also Kennedy, 372 U.S. at 169("Absent conclusive evidence of congressional intent as to the
penal nature of a statute, these factors must be considered in
relation to the statute on its face." (emphasis added)).
¶35 An "as-applied" analysis of whether sex offender
registration constitutes punishment "would prove unworkable."
See Seling v. Young, 531 U.S. 250, 263 (2001). Sex offender
registration "extends over time under conditions that are
subject to change." Id. Its nature, whether penal or non-
penal, "cannot be altered based merely on vagaries" in the
application of the statute to a particular offender's
circumstances. Id. Accordingly, we do not "evalut[e]
the . . . nature of [a law] by reference to the effect [the law]
has on a single individual." Id. at 262.
¶36 Even assuming, however, that Ella could launch an as-
applied challenge, her claim still fails.14 In other words, even
14Justice Brian Hagedorn deems the analysis of Ella's as-
applied challenged "improper." Concurrence, ¶96. It isn't.
The analysis proves the point the United States Supreme Court
made in Seling v. Young, 531 U.S. 250, 263 (2001): an as-
applied challenge in the context of the Eighth Amendment is
indeed unworkable, both substantively as well as temporally.
20
No. 2018AP2205-CR
if we accepted her framework, which we do not, she still cannot
show she has been subjected to punishment. Many of her
complaints are not unique to her:
 For the next fifteen years, she is required to regularly
report her legal name, aliases, date of birth, gender,
race, height, weight, hair color, offense, address,
internet profiles, email addresses, names and addresses
of employment, and names and address of schools attended.
Wis. Stat. § 301.45(2).
 She must notify the DOC each time she moves within 10
days of moving. § 301.45(4)(a).
 Under some circumstances, police may disseminate her
identity to the public. Wis. Stat. § 301.46(5)(a).
 Some municipalities have ordinances that restrict where
she can live.
 She will have to comply with specific statutory
requirements to enter the premises of an elementary,
middle, or high school. Wis. Stat. § 301.475.
These consequences of sex offender registration are no more a
punishment for her than they were for the sex offenders in
Bollig, Hezzie R., and numerous other cases.
¶37 Reporting requirements impose a nominal burden on
liberty that directly serves the public safety purpose of the
law. Additionally, this court rejected the argument that
limited public dissemination of a sex offender's vital
information constitutes "shaming" in Bollig. 232 Wis. 2d 561,
¶¶23–24. Ella also hyperbolizes the extent to which her
information can be disseminated. Sex offender registration for
adults is generally "confidential," with certain exceptions.
Wis. Stat. § 301.45(7)(a). Under some circumstances (often
21
No. 2018AP2205-CR
because there is a need to protect the public), Wisconsin law
allows certain government agencies to share registry information
about adult offenders with non-law enforcement agencies and the
public. Wis. Stat. § 301.46(4) & (5). However, these
provisions do not allow the distribution of "[a]ny information
concerning a child who is required to register,"
§ 301.46(4)(ag)1. & (5)(c)1., or "any information concerning a
juvenile proceeding in which the person was involved" if the
person is now an adult,15 § 301.46(4)(ag)2. & (5)(c)2.
¶38 The restrictions on Ella's ability to enter a school
raise a temporal question. The statute she cites defines
"school" as "an educational program for one or more grades
between grades 1 and 12 and which is commonly known as an
elementary school, middle school, junior high school, senior
high school, or high school." Wis. Stat. § 948.61(1)(b). Ella
is now 22 years old and past her high school years. Whether we
evaluate the punitive aspects of sex offender registration at
the time it was imposed or presently, the requirements are
nonetheless rationally connected to the public safety purpose of
the law. Additionally, Ella asks us to consider that she
"completed sex offender treatment," i.e., she wants us to
consider her as she exists now, not as she existed at the time
she committed her offense. She cannot have it both ways.
The State informs us in its brief that Ella's legal name
15
does not appear in the online sex offender registry.
22
No. 2018AP2205-CR
¶39 The only atypical effects Ella recites relate to her
gender identity. Much of her argument focuses on how Wis. Stat.
§ 301.47(2), which prohibits her from petitioning the circuit
court for a legal name change, is particularly consequential for
her, as a transgender woman. Specifically, Ella argues she has
"a fundamental right to express her authentic gender identity."
Because her legal name is male sounding, she believes it is
inconsistent with this identity. At this point, Ella is 22
years old; however, she nonetheless argues her former status as
a transgender youth, in combination with her status as a sex
offender, create a particular hardship. She says, "[f]ull
expression of gender identity" would "alleviate . . . day-to-day
harassment and systemic discrimination."
¶40 Ella also argues requiring her to register as a sex
offender lacks a rational connection to a nonpunitive purpose.
This argument is largely grounded in social science that
maintains juveniles who commit sexual offenses are at a low risk
of reoffending. Ella also notes, "not a single psychologist who
assessed Ella thought that requiring her to register would
promote public safety."
¶41 As explained more thoroughly below, the law does not
prohibit Ella from using an alias, only from petitioning the
circuit court for a legal name change; therefore, nothing
prevents her from expressing her gender identity. For example,
nothing prohibits her from dressing in women's clothing, wearing
make-up, growing out her hair, or using a feminine alias.
23
No. 2018AP2205-CR
Perhaps more importantly, Ella's suggestion that the State has
no rational basis for keeping track of her is incredible.
¶42 The circuit court noted many of the reports on which
Ella relies to establish her low risk lack thoroughness.
Specifically, the court stated, "[w]hen I looked at some of
these reports too I also felt that they were –– I was a little
surprised I thought they'd be a little more detailed, they don't
seem to be." So, the court found, "they are not as compelling
as they could have been." Effectively, the circuit court
discounted these reports, noting, "[w]hile [Ella] argues that
there is no evidence that juvenile sex offenders pose a
significant risk of reoffending; the fact is that they still
pose a risk. That is because low risk does not mean no risk."
See Belleau v. Wall, 811 F.3d 929, 933–34 (7th Cir. 2016)
("[E]ven if we credit the 8 and 16 percent figures the plaintiff
can't be thought just a harmless old guy. Readers of this
opinion who are parents of young children should ask themselves
whether they should worry that there are people in their
community who have 'only' a 16 percent or an 8 percent
probability of molesting young children——bearing in mind the
lifelong psychological scars that such molestation frequently
inflicts." (citations omitted)). The court also hypothesized
that, to some extent, studies regarding juvenile sex offender
recidivism might demonstrate little more than that registration
"can help prevent further offenses by making it more difficult
for an offender to reoffend; that is, they may be prevented from
residing close to potential victims, and they may not be able to
24
No. 2018AP2205-CR
commit such crimes with the same anonymity as a non-registrant."
The court also noted at the hearing on the first motion, "I
believe from the evaluations, the latest evaluations from
Lincoln Hills indicates that he's at high risk."
¶43 The circuit court further found Ella's conduct was
"impulsive" and "an opportunistic type of action," i.e., she
took advantage of a victim who was vulnerable, despite the
victim's repeated pleas for Ella to stop. Sex offender
registration is designed to eliminate opportunities for people
who cannot control their impulses.
¶44 The facts of the underlying offense are highly
relevant. While Ella and Alan were close in age, Alan has
autism, was significantly behind in school, and is blind in one
eye. The sexual assault also involved an element of force; it
was a very serious offense. In the words of the circuit court,
"[t]he serious and forceful nature of this attack should not and
cannot be glossed over. The child was physically held down,
against his will, with the assistance of an accomplice while
[Ella] sat on the child's legs and pulled his pants and
underwear down." Mandy placed her hand over Alan's mouth "to
prevent him from crying out for help." Ella was also
significantly larger than Alan. Ella knew what she had done was
wrong; she told Alan not to tell anyone. Had Ella been an
adult, she would have been guilty of a Class C Felony carrying a
maximum penalty of 40 years of imprisonment and a $100,000 fine.
Wis. Stat. § 939.50(3)(c).
25
No. 2018AP2205-CR
¶45 Events occurring after the sexual assault also
demonstrate a need to protect the public. After Ella sexually
assaulted Alan, she taunted him via Facebook; she also told
fellow students at school about the assault, perpetuating Alan's
victimization and trauma. The circuit court also found Ella had
"act[ed] inappropriately" at Lincoln Hills "when she attempted
to kiss another student without the student's permission." The
court was particularly concerned about this event: "this
behavior needs to be put in context with the fact that the
juvenile was at Lincoln Hills for a delinquency resulting from
[the] underlying act of 2nd degree sexual assault of a minor
child." Although Ella admitted this attempted kissing was
wrong, her acknowledgment "is no guarantee that [she] will not
sexually act out in an illegal manner in the future. This act
is not evidence of a reduced risk to reoffend, but rather
evidence of an increased risk to reoffend."
¶46 In summary, sex offender registration does not
constitute punishment under the law, which does not recognize
Ella's as-applied challenge. Requiring sex offenders like Ella
to register their whereabouts with the State is rationally
related to the public safety purpose underlying the law. The
record in this case amply illustrates the connection between
tracking sex offenders like Ella and protecting the public.
B. Sex Offender Registration Is Neither Cruel Nor Unusual
26
No. 2018AP2205-CR
¶47 Ella's Eighth Amendment claim fails even if sex
offender registration could be construed as punishment because
registration is neither cruel nor unusual. The United States
Supreme Court considers punishment cruel and unusual only if it
falls into one of two categories: (1) "those modes or acts of
punishment that had been considered cruel and unusual at the
time that the Bill of Rights was adopted"; or (2) "punishment
inconsistent with 'evolving standards of decency that mark the
progress of a maturing society.'" Ninham, 333 Wis. 2d 335, ¶46
(quoting Ford v. Wainwright, 477 U.S. 399, 405–06 (1986)).16
¶48 The founding fathers included the Eighth Amendment in
the Bill of Rights because of their familiarity with
"atrocities" committed under English law. Wilkerson v. Utah, 99
U.S. 130, 135 (1878). Sir William Blackstone, who had a
profound impact on the framers of the Constitution, identified
"[c]ases . . . where the prisoner was drawn or dragged to the
place of execution, in treason; or where he was embowelled
16But see John F. Stinneford, Experimental Punishments, 95
Notre Dame L. Rev. 39, 54 & n.91 (2019) (explaining the
"'evolving standards of decency' test" "take[s] a snapshot of
current public opinion. This is the most democratic means of
measuring the constitutionality of a punishment. If the
sovereign people approve the punishment, it must be
constitutional. But this approach is inconsistent with the
premise underlying a written Bill of Rights, which is that the
Constitution should constrain what is sometimes called the
'tyranny of the majority.' When caught in a moral panic——
concerning drug dealers, juvenile superpredators, or sex
offenders, for example——public opinion is likely to support
extreme punishments in order to restore a sense of social
control. The Constitution is meant to constrain the tendency to
excess, not facilitate it.").
27
No. 2018AP2205-CR
alive, beheaded, and quartered, in high treason." Id. He also
mentioned "public dissection in murder, and burning alive in
treason committed by a female." Id. These are classic examples
of punishments prohibited by the Eighth Amendment under the
first category, all of which involve the infliction of severe
and unnecessary physical pain, often carried out as a spectacle
for onlookers. In comparison, sex offender registration,
whatever its impact on Ella, does not come close to a form of
punishment recognized as cruel and unusual at the founding.
¶49 Under the second category, an offense may be deemed
cruel17 if it is "excessive" and "so disproportionate to the
offense committed[] as to shock public sentiment and violate the
judgment of reasonable people concerning what is right and
proper under the circumstances." See Ninham, 333 Wis. 2d 335,
¶85 (quoting State v. Paske, 163 Wis. 2d 52, 69, 471 N.W.2d 55(1991)). This is a "high" bar. United States v. Juvenile Male,
670 F.3d 999, 1010 (9th Cir. 2012). For perspective, "the
[United States] Supreme Court has upheld a life sentence for
three theft-based felonies totaling a loss of about $230, a 25-
year sentence for stealing golf clubs, a life sentence for
We focus on the meaning of "cruel" because United States
17
Supreme Court precedent does so while giving the word "unusual"
much less attention. See id. at 48 ("[C]ourts and scholars have
largely ignored the word or assigned it a weak meaning.").
"Under its original meaning, the Cruel and Unusual Punishments
Clause prohibits cruel innovations——that is, punishments that
are unjustly harsh in light of long-standing prior practice."
Id. at 42. Applying either the Court's precedent or the
original understanding of the Clause results in the same
conclusion: sex offender registration does not violate the
Eighth Amendment.
28
No. 2018AP2205-CR
possessing 672 grams of cocaine, and a 40-year sentence for
possessing nine grams of marijuana." Carney, 875 F.3d at 1352
(citations omitted). This court has upheld a life sentence,
without the possibility of parole, for a person convicted of
first-degree intentional homicide who committed the crime at the
age of 14. Ninham, 333 Wis. 2d 335, ¶¶4–5.
¶50 As the State persuasively argued, Ella's temporary
inability to change her legal name is unlike anything that has
ever been recognized as cruel, and no other aspect of sex
offender registration approaches cruelty either. There is also
nothing unusual about registration. As this court noted in
Bollig, "[p]resently all 50 states have some type of sex
offender registration and notification laws in effect." 232
Wis. 2d 561, ¶19 (citing Roe v. Farwell, 999 F. Supp. 174, 177
n.1 (D. Mass. 1998)).
¶51 Accepting Ella's argument would render Wisconsin an
outlier, without justification. See, e.g., People v. Adams, 581
N.E.2d 637, 641 (Ill. 1991) (concluding Illinois's child sex
offender registration scheme is not cruel and unusual); Juvenile
Male, 670 F.3d at 1010 (concluding "SORNA's registration
requirements do not violate the Eighth Amendment" in light of
"the high standard that is required to establish cruel and
unusual punishment"); In the Interest of T.H., 913 N.W.2d 578,
597 (Iowa 2018) (concluding Iowa's juvenile sex offender
registration requirement is not cruel and unusual). We reject
Ella's Eighth Amendment claim and apply the law as it has been
29
No. 2018AP2205-CR
understood since the founding and as it has been uniformly
interpreted for more than two centuries.
IV. ELLA'S FREEDOM OF SPEECH CLAIM
A. Ella's Argument
¶52 Ella also argues that requiring her to register as a
sex offender violates her right to free speech under the First
Amendment, which provides: "Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances."
¶53 As far as we can discern, Ella advances two theories:
(1) "Ella's right to express her gender identity is expressive
conduct protected by the First Amendment"; therefore, "[b]y
preventing Ella from changing her name, registration prevents
her from fully expressing her identity"; and (2) "registration
not only prevents Ella from expressing her identity, it compels
speech by forcing Ella to disclose her transgender status."
¶54 Ella's claim, as well as her theories in support of
it, have evolved throughout this litigation. Before the circuit
court, Ella did not advance an independent First Amendment
claim, instead choosing to argue the statute violated her right
to substantive due process because it purportedly restricted a
number of her liberties, including her right to free speech.
Before the court of appeals Ella raised a standalone First
Amendment claim, but she was very particular in how she defined
it: "Ella does not assert that the fundamental right is an
30
No. 2018AP2205-CR
ability to change her name; she asserts a right to express her
true identity, which is protected by the First Amendment." In
support, Ella continued to cite the same substantive due process
cases she presented to the circuit court, including Obergefell.
Ella makes a similar argument to this court. At times, she
seems to argue requiring her to register as a sex offender is
unconstitutional; at other points, she seems to concentrate on
her inability to legally change her name under Wis. Stat.
§ 301.47(2)(a).
¶55 Ella's distinction between "an ability to change her
name" and "a right to express her true identity" appears to be
semantical in this case because Wis. Stat. § 301.47(2)(a) is the
only statute she complains infringes her right to expression.
She does not claim, for example, that any statute prohibits her
from dressing however she pleases, although she cites a case for
the proposition that "a transgender woman's dressing in feminine
clothing is expressive conduct protected by the First
Amendment."18
¶56 Ella also alters her interpretation of the relevant
statutes. The State conceded Ella is allowed to use an alias of
her choosing in day-to-day affairs. As the State explained,
while Wis. Stat. § 301.47(2)(a) declares registered sex
offenders may not change their legal name, the very next
Ella's Br. at 33 (citing Doe ex rel. Doe v. Yunits,
18
No. 001060A, unpublished slip op., 2000 WL 33162199 (Mass.
Super. Ct. Oct. 11, 2000), aff'd sub nom. Doe v. Brockton Sch.
Comm., No. 2000-J-638, unpublished slip op., 2000 WL 33342399(Mass. App. Ct. Nov. 30, 2000)).
31
No. 2018AP2205-CR
paragraph, (2)(b), provides sex offenders may not
"[i]dentify . . . by a name unless the name is one by which the
person is identified with the department of corrections."
Another statute, Wis. Stat. § 301.45(2)(a)1., directs the DOC to
include sex offenders' "aliases" in the registry. Reading these
two statutes together, the DOC allows sex offenders to use an
alias provided they notify the DOC.19 Before the court of
appeals, Ella acquiesced to this interpretation, although she
did not think it was particularly relevant.20 She described the
legal issue as her inability to petition the circuit court,
under Wis. Stat. § 786.36, for a legal name change, claiming
"she either continues to suffer harm from maintaining a legal
name that is discordant with her true identity or commits a
felony by petitioning for a name change." The court of appeals
19 Krebs v. Graveley, 2020 WL 1479189 *1 n.1 (E.D. Wis. Mar.
26, 2020), aff’d 861 F. App'x 671 (7th Cir. 2021) ("The Name-
Change Statute does prohibit sex offenders from identifying
themselves by a name not registered with the state. Wis. Stat.
§ 301.47(2)(b). But Plaintiff long-ago registered Karen as an
alias for Kenneth, the name that appears on her judgment of
conviction.").
20 See, e.g., Ella's Ct. App. Reply Br. at 10 ("Nor does
Ella's ability to informally go by a female-sounding name cure
this problem. There is a meaningful distinction between the
ability to informally identify as Ella and the ability to
legally identify as Ella. As discussed, this creates an
unconstitutional disconnect between Ella's ability to identify
as a woman and the requirement to present legal documentation
that does not match her true identity."); Ella's Ct. App. Suppl.
Reply Br. at 5 ("The State's assertion that Ella's ability to
informally identify as female cures any constitutional problem
misses the point. There is a meaningful distinction between the
ability to informally identify as Ella and the ability to
legally identify as Ella.").
32
No. 2018AP2205-CR
expressly relied on the reading advanced by the State and to
which Ella did not object. C.G., 396 Wis. 2d 105, ¶28 ("She
further contends that her ability to informally identify with a
female-sounding name——as long as she notifies the registry that
she uses such a name——is insufficient to protect her right to
formally identify in that manner with a name other than her
current legal name.").
¶57 Ella now changes her position, arguing for the first
time, "[t]here are two ways to change ones' [sic] name in
Wisconsin: through formal petition under Wis. Stat. § 786.36,
or through 'continuous and consistent use' under the common
law." Ella did not invoke the common law in the courts below.
Nevertheless, she now suggests she may not continuously and
consistently use an alias because such use might effectuate a
common law name change, in violation of Wis. Stat.
§ 301.47(2)(a). Neither her briefing before the court of
appeals nor her petition for review addressed the nuanced
implications of the common law with respect to this case.
Accordingly, the State argued in its response brief that Ella
forfeited this argument. In Ella's reply brief, she made no
attempt to rebut the State's forfeiture argument. See State v.
Mercado, 2021 WI 2, ¶38 n.13, 395 Wis. 2d 296, 953 N.W.2d 337("The State argues that because Mercado did not dispute the
State's forfeiture argument on appeal, Mercado conceded the
argument. . . . We agree . . . . When a party does not respond
to an argument, we may deem that argument conceded." (citation
omitted)).
33
No. 2018AP2205-CR
¶58 Although Ella forfeited this argument, we choose to
address it. We reject Ella's statutory interpretation. The
common law right to use an alias is distinguishable from the
common law rule that continuous and consistent use of an alias
effectuates a legal name change. The plain text of the statute
abrogated the latter rule but not the former right.
¶59 "At common law it was the rule that in the absence of
statutory restriction, and where it is not done for a fraudulent
purpose, one could lawfully change his name at will without
proceedings of any sort, merely by adopting another name, and
for all purposes the name thus assumed would constitute his
legal name just as much as if he had borne it from birth."
State v. Hansford, 219 Wis. 2d 226, 247–48, 580 N.W.2d 171(1998) (citation omitted) (emphasis added); see also 32 Wis.
Att'y Gen. Op. 203, 204–05 (1943) ("[I]t would seem apparent
that one does not have any absolute inherent or natural right to
change his name and do business thereunder. It is generally
stated that it is well settled that, in the absence of a
statutory prohibition, a person may lawfully adopt any name he
chooses." (citations omitted)).
¶60 Ella is prohibited by statute from legally changing
her name; however, under the plain language of the statute, the
parties essentially agree she can use an alias but for the
application of the common law. Accepting this reading, which
comports with the plain meaning of Wis. Stat. § 301.47(2), we
conclude Ella can use an alias, but even if her use of that
alias would otherwise be sufficiently "continuous and
34
No. 2018AP2205-CR
consistent" to effectuate a legal name change if she were not a
registered sex offender, by operation of law, her legal name
would remain unchanged. Section 301.47(2) unambiguously changes
the common law rule, but it does not clearly change the common
law right. See Fuchsgruber v. Custom Accessories, Inc., 2001
WI 81, ¶25, 244 Wis. 2d 758, 628 N.W.2d 833 ("A statute does not
change the common law unless the legislative purpose to do so is
clearly expressed in the language of the statute." (citing
Maxey v. Redevelopment Auth. of Racine, 94 Wis. 2d 375, 399, 288
N.W.2d 794 (1980)); see also Estate of Miller v. Storey, 2017 WI
99, ¶111, 378 Wis. 2d 358, 903 N.W.2d 759 (Kelly, J.,
concurring/dissenting) ("A statute will be construed to alter
the common law only when that disposition is clear." (quoting
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 318 (2012)). Although Ella's
common law right to use a name of her choosing in day-to-day
affairs has not been abrogated, the State will not recognize her
by that name.
¶61 We accordingly analyze Wis. Stat. § 301.47(2)(a) as a
prohibition on petitioning a circuit court for a legal name
change, not a ban on using an alias. Under this view,
§ 301.47(2)(a) is nothing more than an exception to Wis. Stat.
§ 786.36, Wisconsin's statute governing legal name change
petitions.
B. Analysis
¶62 Because Ella is free to "use whatever moniker she
chooses for personal or professional purposes," Matter of
35
No. 2018AP2205-CR
Miller, 617 N.Y.S.2d 1024, 1026 (N.Y. Civ. Ct. 1994), her First
Amendment argument is quite narrow: it concerns only her
inability to legally change her name, not her ability to use a
name of her choosing in the course of ordinary affairs.
1. The Novelty of Ella's Claim
¶63 Few courts have addressed this issue. Among those
that have, none have held that a prohibition on changing a
person's legal name, standing alone, implicates the right to
free speech. If a person is free to use a different name in
day-to-day affairs, statutory restrictions on changing a
person's legal name have not been understood to restrict speech
or expression.
¶64 In Petition of Variable for Change of Name v. Nash, a
New Mexico trial court rejected the petitioner's request to
change his legal name to "Fuck Censorship!" 190 P.3d 354, 355
(N.M. Ct. App. 2008). On appeal, the petitioner argued he had a
First Amendment right "to call himself whatever he wishes" and
that the denial constituted "improper government censorship[.]"
Id. at 356. The New Mexico Court of Appeals rejected the
petitioner's arguments, not only because "Fuck Censorship!" is
obscene, but because the petitioner could use the name under the
common law without any need to involve the State. Id.("Petitioner is entitled to assume whatever name he desires,
absent fraud or misrepresentation, but any statutory name change
will be subject to the district court's scrutiny.
Here . . . '[s]ince [Petitioner's] common law right to use the
[]name has not been abrogated . . . , none of his First
36
No. 2018AP2205-CR
Amendment rights have been prejudiced." (quoted source omitted)
(modifications in the original)).
¶65 The Nash court was persuaded by Lee v. Superior Court,
11 Cal. Rptr. 2d 763 (Ct. App. 1992). In that case, the
petitioner sought to change his legal name to a racial epithet.
Id. at 764. Like the petitioner in Nash, who wanted to make a
political statement about censorship, the petitioner in Lee also
wanted to make a political statement: specifically, he said he
wanted to "steal the stinging degradation——the thunder, the
wrath, shame and racial slur" associated with the word. Id.
"He theorize[d] that his use of the name, with court approval,
could be used to conquer racial hatred." Id.
¶66 The California Court of Appeals reasoned the
petitioner could not force the judiciary to "lend the Great Seal
of the State of California" to this cause. Id. It reasoned,
"[a]ppellant has the common law right to use whatever name he
chooses. . . . However, he has no statutory right to require
the State of California to participate therein." Id. It
concluded, "[s]ince appellant's common law right to use the
surname has not been abrogated, . . . none of his First
Amendment rights have been prejudiced. . . . The order only
precludes the filing of the name with the Secretary of
State. . . . Nothing more, nothing less." Id. at 768.
¶67 In Petition of Dengler, the petitioner sought to
change his legal name to the number 1069. 246 N.W.2d 758, 759
(N.D. 1976). He explained that each numeral represented a
particular concept of importance to him. For example, he said
37
No. 2018AP2205-CR
the numeral 1 "stands for my concept of nature which manifests
itself as one individual among the various forms of life." Id.He claimed he could not express his true identity in any way
other than by using the name 1069. Id. at 760. The petition
was denied.
¶68 On appeal, the North Dakota Supreme Court stated,
"petitioner relied upon the First Amendment to the United States
Constitution for the name change claiming under the freedom of
speech provision he had a right to change his name. Petitioner,
however, failed to give any convincing reason in support of his
argument, and we are not aware of any." Id. at 761. The court
upheld the trial court's decision because "to use the court or
law to impose or force a number in lieu of a name upon society"
went beyond "bordering on bizarre[.]" Id. at 764. The common
law might have permitted the petitioner to use a number as his
name, but the court would not "force its acceptance" on society,
which is an effect, to a degree, of a legal name change when
ordered by a court. Id.; see also Leone v. Comm'r, 933
N.E.2d 1244, 1254 (Ind. 2010) ("While the courts have a unique
power to certify a name change, Hoosiers still may refer to
themselves by any name they like. They may not, however, demand
that government agencies begin using their new names without a
court order. This dual structure recognizes the reality that
names serve multiple purposes, both private and public."
(internal citation omitted)).
¶69 Nash, Lee, and Dengler reflect judicial rejection of
the notion that a legal name change implicates the freedom of
38
No. 2018AP2205-CR
speech.21 Inherent in each decision is the view that free speech
is, generally, a negative right, like most rights secured by the
Bill of Rights. Alston v. Redman, 34 F.3d 1237, 1247 (3d Cir.
1994) (explaining "the rights guaranteed by the Constitution of
the United States are primarily negative in character, standing
guard as vigilant sentinels at the perimeter of permissible
state conduct. It is only at the time that the state seeks to
invade this citadel of individual liberty that these
constitutional guarantees can be summoned to battle." (internal
citations omitted)). "This position has strong textual support
in the Bill of Rights. The right of free speech, the right to
be free from unreasonable searches and seizures, the right to be
free from double jeopardy, the right to due process under the
Fifth Amendment, all of these are framed as prohibitions on
state conduct, rather than as commandments for state action."
Id. In other words, the State cannot be compelled to recognize
a name and change its records.22 See Williams v. Racine Cnty.
21Although the dissent does not address any of these cases,
it claims our analysis "goes against the tide of the relevant
case law." Dissent, ¶116. If the dissent's assertion were
correct, it would not have to cite multiple cases having nothing
to do with the First Amendment to justify its desired outcome.
See e.g., Obergefell v. Hodges, 576 U.S. 644 (2015) (substantive
due process); Ford v. Wainwright, 477 U.S. 399 (1986) (cruel and
unusual punishment); Hernandez-Montiel v. Immigr. &
Naturalization Serv., 225 F.3d 1084, 1093 (9th Cir. 2000)
(immigration law).
States may have an affirmative duty to make certain
22
places available for expressive conduct. David P. Currie,
Positive and Negative Constitutional Rights, 53 U. Chi. L.
Rev. 864, 879 (1986). Occasionally, advocates have tried to
extend forum arguments to things produced by government, like
39
No. 2018AP2205-CR
Cir. Ct., 197 Wis. 2d 841, 846, 541 N.W.2d 514 (Ct. App. 1995)
("Williams has no positive right to a name change. The fact
that others have changed their names, or that one of his stated
reasons for seeking the name change is religious in nature, does
not create an affirmative right to the name change.").
¶70 "Self-expression does not require a court order."
Miller, 617 N.Y.S.2d at 1026. "There is no constitutional or
inherent right to compel legal sanction of a change of name,
notwithstanding the right at common law to assume a new name so
long as it is not for a fraudulent or illegal purpose." Leone,
933 N.E.2d at 1254 (quoting In re Hauptly, 312 N.E.2d 857, 862
(Ind. 1974) (Prentice, J., dissenting)). As even advocates
seeking to expand First Amendment protections acknowledge,
"denials of name-change petitions do not directly impose
restrictions on the petitioners' speech. None of the
difficulties faced by denied petitioners restrict[] something to
which they are entitled based on their free speech rights. None
of these difficulties in fact place limits on speech at all."
license plates and driver's licenses. These arguments have had
limited success. See Walker v. Texas Div., Sons of Confederate
Veterans, Inc., 576 U.S. 200, 214–19 (2015) (rejecting an
argument that Texas specialty license plates create a forum for
speech because the plates constitute government speech); Krebs,
2020 WL 1479189 *2 (refusing to address an underdeveloped
argument that Wisconsin law had created a "limited public forum"
for "changing one's name"). Because Ella does not raise this
argument, which borders on being an entirely different claim, we
need not address it further.
40
No. 2018AP2205-CR
Julia Shear Kushner, Comment, The Right to Control One's Name,
57 UCLA L. Rev. 313, 337 (2009).23
2. Ella's Burden
¶71 Ella has a difficult burden, in light of the novelty
of her claim, to persuade us that the name-change prohibition in
Wis. Stat. § 301.47(2)(a) implicates her right to free speech by
infringing her expressive conduct. Clark v. Comm. for Creative
Non-Violence, 468 U.S. 288, 293 n.5 (1984) ("Although it is
common to place the burden upon the Government to justify
impingements on First Amendment interests, it is the obligation
of the person desiring to engage in assertedly expressive
conduct to demonstrate that the First Amendment even applies.");
see also Doe v. City of Lafayette, 377 F.3d 757 (7th Cir. 2004)
(applying the burden discussed in Clark). If the prohibition
does not infringe expressive conduct, no further First Amendment
analysis is necessary. State v. Baron, 2009 WI 58, ¶16, 318
Wis. 2d 60, 769 N.W.2d 34.
¶72 Ella has not satisfied her burden. In a recent,
analogous case, the Eastern District of Wisconsin explained:
Plaintiff has failed to establish that Wisconsin's
regulation of her ability to change her name
implicates her First Amendment rights. The parties
provide relatively scant attention to this
matter. . . . Plaintiff chides Defendant for
providing "no authority for its assertion that
Kushner argued viewpoint discrimination, in the context
23
of legal name changes, could implicate the right to free speech.
We need not examine this issue further because Wis. Stat.
§ 301.47(2)(a) does not allow sex offenders to petition for some
legal name changes but not others.
41
No. 2018AP2205-CR
regulating a person's name does not implicate the
First Amendment."
Plaintiff forgets who bears the burden of proof and
persuasion on her claim. It is she, not Defendant,
who must establish that regulating a person's name
implicates the First Amendment.
Krebs v. Graveley, 2020 WL 1479189 *1 (E.D. Wis. Mar. 26, 2020),
aff’d 861 F. App'x 671 (7th Cir. 2021) (internal citations
omitted); see also In re Larson, No. A18-2153, unpublished slip
op., 2019 WL 7286959 *3 (Minn. Ct. App. Dec. 30, 2019)
(affirming a lower court's denial of a sex offender's petition
to change his legal name to "Better Off Dead" because
"[a]ppellant failed to provide specific authority regarding the
free-speech right to change one's name under these
circumstances, and there appears to be none" and therefore "the
district court did not improperly reject appellant's freedom-of-
speech argument and did not abuse its discretion by denying his
name-change petition"). Ella's claim suffers from a similar
defect defeating the claim advanced by the plaintiff in Krebs.
The First Amendment has been a part of our Constitution since
1791. People changed their names even before then. Ella has
been unable to cite binding or persuasive authority for the
proposition that restrictions on legal name changes implicate
protected speech.24 We agree with the court of appeals, which
Ella cites cases that are not on point. For example, she
24
relies on Salaam v. Lockhart, 905 F.2d 1168 (8th Cir. 1990). In
that case, a prisoner used a state court proceeding to legally
change his name after he converted to Islam. Id. at 1169. The
prison nonetheless refused to recognize his name change because
of a policy "to use only committed names on prison records and
clothing, and in the mail room." Id. The court held "that the
42
No. 2018AP2205-CR
concluded that "Ella has therefore failed to meet her burden to
prove that her First Amendment rights are implicated by the sex
offender registry statute[.]" C.G., 396 Wis. 2d 105, ¶32; see
also id., ¶31 (discussing Krebs).
3. Ella's Expressive Conduct Theory
¶73 Ella's argument rests 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.
¶74 The United States Supreme Court has noted the Free
Speech Clause's protection "extend[s] . . . only to conduct that
is inherently expressive." Rumsfeld v. Forum for Academic &
Institutional Rights, Inc., 547 U.S. 47, 66 (2006) (emphasis
added). Notably, conduct does not become expressive simply
because it is accompanied by speech or involves the use of
state authorities must deliver mail to Salaam addressed to him
only as Salaam and must allow the addition of Salaam's current
name to his clothing. The state, however, need reform its
record keeping only to the extent necessary to allow Salaam to
receive services and information in his new name within the
prison." Id. Salaam is not factually analogous to this case
because Ella has not received a legal name change.
Additionally, the State is not interfering with Ella's ability
to use a name of her choosing, i.e., it is not placing a literal
badge with a different name on her clothing and ordering her to
wear it, as prison officials did in Salaam.
43
No. 2018AP2205-CR
words. Id. at 62. For example, "Congress . . . can prohibit
employers from discriminating in hiring on the basis of race.
The fact that this will require an employer to take down a sign
reading 'White Applicants Only' hardly means that the law should
be analyzed as one regulating the employer's speech rather than
conduct." Id. "It rarely has been suggested that the
constitutional freedom for speech and press extends its immunity
to speech or writing used as an integral part of conduct in
violation of a valid criminal statute. We reject the contention
now." Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498
(1949).
¶75 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. "Ella has the right to
use whatever name she chooses, provided she includes it in the
sex offender registry." C.G., 396 Wis. 2d 105, ¶32. 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, e.g., dressing in women's clothing, wearing make-up,
growing out her hair, and using a feminine alias.
¶76 Whether conduct is expressive is partly an objective
inquiry, which turns on how reasonable people——unfamiliar with
the intent of the actor——would understand the conduct.
Rumsfeld, 547 U.S. at 66 ("An observer who sees military
recruiters interviewing away from the law school has no way of
knowing whether the law school is expressing its disapproval of
44
No. 2018AP2205-CR
the military, all the law school's interview rooms are full, or
the military recruiters decided for reasons of their own that
they would rather interview someplace else."); see also Gul v.
City of Bloomington, 22 N.E.3d 853, 859 (Ind. Ct. App. 2014)
(rejecting a claim that a property owner had a First Amendment
right not to mow his lawn as a mode of expression because
"[t]here is nothing inherent to an overgrown yard that would
lead an average person of ordinary sensibilities to conclude
that any message at all was being conveyed, much less a specific
environmental message").
¶77 A person observing Ella present herself as a woman
would not understand her to be expressing herself as a man
because the name printed on her driver's license is masculine;
perhaps displaying her driver's license might cause the viewer
to have doubts about whether Ella is biologically female,
thereby inhibiting the success of her intended goal to be
perceived as a woman. That impediment does not render the
production of identification expressive conduct, however. See
Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶61, 399
Wis. 2d 623, 967 N.W.2d 469 (explaining the right to freedom of
speech does not entitle the speaker to a favorable outcome in
her endeavor). While those who read her legal documents may
realize she is transgender, that insight does not stop Ella from
expressing herself in whatever manner she chooses. "Romeo
would, were he not Romeo call'd, Retain that dear perfection
which he owes Without that title[.]" Leone, 933 N.E.2d at 1252.
45
No. 2018AP2205-CR
¶78 Taking Ella's argument to its logical conclusion, she
would also compel the State to print on her driver's license
that she is female because she self-identifies as a woman. Ella
says the problem is not merely her inability to change her legal
name but the impact the name-change prohibition has on her
ability to identify as a woman. Ella quite clearly explained
she wants the legal name change so she no longer has "to present
legal documentation that does not match her true identity."
Notably, Ella blurs any distinction between biological sex and
gender identity, saying she identifies as "a transgender
female," while at another point saying she "identifies as a
woman[.]" If she cannot print "female" on her license, she will
be outed as easily as she may be with a traditionally-masculine
name printed on it.
¶79 Like biological sex, a legal name is a hallmark of
identification. Although a person may use an alias for
expressive purposes, the point of a legal name is to "tether
one's name to a fixed identifier." Leone, 933 N.E.2d at 1254
(citation omitted); see also name, A Dictionary of the English
Language (10th ed. 1792) ("The discriminative appellation of an
individual." (emphasis added)). If the right to free speech
included the prerogative to change one's legal name at will
absent a compelling state interest prohibiting the name change,
the very point of printing identifying information on documents
would be undermined. Just like a legal name, the sex offender
registry tracks other "[i]nformation sufficient to identify the
person, including date of birth, gender, race, height, weight
46
No. 2018AP2205-CR
and hair and eye color." Wis. Stat. § 301.45(2)(a)2. Ella
offers no limiting principle that would grant her the
constitutional right to change her legal name while other
hallmarks of identification remain fixed.25
¶80 The historical record does not support Ella's argument
for compelling the State to change her legal name. "[A] common-
law name change carries with it no mandate to those with whom
one comes in contact to accept at face value the nexus between
the new name and the individual who assumes it. Persons who
change their personal names may not necessarily demand that
government agencies begin using their new names without a court
order." 65 C.J.S. Names § 21 (updated Feb. 2022).
¶81 Around the time of the nation's founding, legal name
changes were rejected by state governments for various reasons,
and the historical record contains no suggestion that anyone
thought the First Amendment was implicated. "A curious example
of the quibbles into which the common law sometimes [fell] was
developed by the use of single letters as names. It was many
times held that while a vowel, being a complete sound in itself,
was sufficient to constitute a name, a consonant, representing
only part of a compound sound, could not so act." G.S. Arnold,
Personal Names, 15 Yale L.J. 227, 228 (1905–06). These early
cases, along with the scholarship examining them, lack even a
hint that the founding generation understood government to be
regulating expressive conduct, protected by the First Amendment.
25 Ella has not advanced a forum argument. Supra ¶69 n.22.
47
No. 2018AP2205-CR
Ella has not directed us to any historical sources from the
founding that would support her argument, nor have we found any.
¶82 A nineteenth century English solicitor general is
reported to have said, "[t]here was no law forbidding a man to
change his name; but there was also no law which compelled his
neighbour to acknowledge him under the name he might
assume. . . . Everybody was at liberty, if he pleased, to
change his surname, but no one else was obliged to recongise the
change unless he pleased." Herbert, ci-devant Jones, Change of
Surname, in 1 The Herald & Genealogist, at 454, 463 (1863). To
the extent officials were "bound" to recognize a name, he
suggested the rule derived from "convenience." Id. at 463–64.
"There was no law on the subject; but when there appeared to be
nothing arbitrary or improper, and when there was no
encroachment on the feelings and rights of others, then it was
courteous to accede to the wish of a person who might desire to
change his name." Id. at 464.
¶83 Other nineteenth century commentators took a different
view, writing that all name changes were wholly the prerogative
of the crown. See A. C. F-D. & A.M.R., A Treatise on the Law
Concerning Names and Changes of Names (continued), 2
Genealogical Mag., 537, 542 (1899) ("The gift of a name or a
change of name is a matter of honour, in the prerogative of the
Crown, and subject to the jurisdiction of the Courts of Honour.
It is wholly outside the jurisdiction of the ordinary tribunals,
which have no power to adjudicate upon the point."). Contra
T.E. Morris, The Re-Naming of Welshmen, in The Transactions of
48
No. 2018AP2205-CR
the Honourable Society of Cymmrodorion, at 1, 18–19 (1901–02)
(critiquing the notion that a name is a "gift" and "prerogative"
of the crown).
¶84 The historical practice of applying to the crown for a
legal name change, which the crown could deny, demonstrates the
limited extent to which the government is required to effectuate
a legal name change, regardless of whether other methods of
accomplishing a legal name change did not require a direct
appeal to the crown. See Davies v. Lowndes, 1 Bing. N. Cas.
597, 618 (1835) ("And there is no necessity for any application
for a royal sign manual to change the name. It is a mode which
persons often have recourse to, because it gives a greater
sanction to it, and makes it more notorious.").
¶85 "In the 19th and 20th centuries express statutory
provisions for changing names were enacted in many
jurisdictions." Hall v. Hall, 351 A.2d 917, 922 (Md. Ct. Spec.
App. 1976). In nearly all states, including Wisconsin, the
decision of whether to grant a statutory petition for a legal
name change has been committed to the sound discretion of the
court. Id.; see also Williams, 197 Wis. 2d at 847. The fact
that petitions may be denied under this discretionary standard
strongly suggests a legal name change, as traditionally
understood, does not implicate the freedom of speech. Ella
seeks recognition of a new right, not a remedy to enforce a pre-
existing right. See Houston Cmty. Coll. Sys. v. Wilson, 595
U.S. __, 142 S. Ct. 1253, 1259 (2022) (noting "no one before us
has cited any evidence suggesting that a purely verbal
49
No. 2018AP2205-CR
censure . . . has ever been widely considered offensive to the
First Amendment"). A "[l]ong settled and established practice
is a consideration of great weight." Id. (quoting The Pocket
Veto Case, 279 U.S. 655, 689 (1929)) (modification in the
original). "Often, 'a regular course of practice' can
illuminate or 'liquidate' our founding document's 'terms &
phrases.'" Id. (quoting Letter from J. Madison to S. Roane
(Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed.
1908)). The lack of historical precedent for Ella's position is
fatal to her claim, particularly because she has the burden to
persuade us that her expressive conduct is being infringed.
¶86 In dismissing our historical analysis, the dissent
ignores the United States Supreme Court's similar originalist
approach to First Amendment questions. Its recent unanimous
decision in Houston Community College System is a prime
example. See, e.g., id. at 1259 ("As early as colonial times,
the power of assemblies in this country to censure their members
was 'more or less assumed.' . . . The parties supply little
reason to think the First Amendment was designed or commonly
understood to upend this practice." (quoted source
omitted)). Our "historical journey" in this opinion represents
the accepted method for interpreting the First Amendment.
¶87 The dissent criticizes the court for examining the
historical record in search of evidence suggesting the original
meaning of the First Amendment protects legal name changes,
advocating that "times change. Societies evolve. Instead of
looking backward to esoteric sources to define the contours of
50
No. 2018AP2205-CR
modern existence, we should instead look, as we do in other
contexts, to 'evolving standards of decency that mark the
progress of a maturing society.'"26 These sentiments reflect the
philosophy of living constitutionalism, which would rewrite the
Constitution to reflect the views and values of judges.
Exploring the historical record is more than "interesting"——it
is impossible to ascertain the meaning of a constitutional
provision without undertaking this analysis. See Thomas M.
Cooley, A Treatise on the Constitutional Limitations Which Rest
upon the Legislative Power of the States of the American Union
59 (1868) ("We cannot understand these provisions unless we
understand their history."). This method enables judges to
discern the original public meaning of the text, which is fixed.
¶88 The alternative approach, embraced by the dissent,
undermines democracy. "When government-adopted texts are given
a new meaning, the law is changed; and changing written law,
like adopting written law in the first place, is the function of
the first two branches of government. . . . Allowing laws to be
rewritten by judges is a radical departure from our democratic
system." Scalia & Garner, Reading Law, at 82–83 ("[T]he living
Constitution is genuinely corrosive of the fundamental values of
our democratic society." (citing William H. Rehnquist, The
Notion of a Living Constitution, 54 Tex. L. Rev. 693, 706
(1976))).
26 Dissent, ¶111.
51
No. 2018AP2205-CR
¶89 In comparison to the objective standards by which
originalism allows us to understand the meaning of the
constitutional text, the living constitutionalism espoused by
the dissent leaves unanswered the question of why it "makes
sense for us to" change the meaning of the First Amendment, and
by what authority judges (as opposed to the people) may decide
to change the law. See McDonald v. City of Chicago, 561
U.S. 742, 803 (2010) (Scalia, J., concurring) (noting living
constitutionalism "empowers judges to eliminate or expand what
the people have prescribed"). Even if "evolving standards"
could change the meaning of the Constitution, why should
"Justices' notions" of what the First Amendment "ought to mean"
prevail over "the democratically adopted dispositions of our
current society?" McCreary County v. Am. C.L. Union of Ky., 545
U.S. 844, 899 (2005) (Scalia, J. dissenting). Fundamentally,
the dissent's proposed "constitutional revision by" the judicial
branch "accompanied (as it is today) by extravagant praise of
liberty," would "rob[] the People of the most important liberty
they asserted in the Declaration of Independence and won in the
Revolution of 1776: the freedom to govern themselves."
Obergefell, 576 U.S. at 714 (Scalia, J., dissenting). Our job
is not "to define the contours of modern existence"27 but to
declare the meaning of the law——in this case, the supreme law of
the land.
27 Id.
52
No. 2018AP2205-CR
¶90 It is a "caricature of originalism," Scalia & Garner,
Reading Law, at 85, to reject it because, as the dissent argues,
"[a]t the time of the founding . . . transgender rights were the
furthest thing from the founders' minds."28 "Drafters of every
era know that . . . the rules they create will one day apply to
all sorts of circumstances that they could not possibly
envision[.]" Id. at 86. While transgenderism is a modern
concept, changing one's name is not.
¶91 The dissent seems to disparage the Constitution (or at
least its fixed meaning) because "[a]t the time of the founding
Black people could be considered property and women had no
rights[.]"29 More than 150 years ago, the people
constitutionally adopted equality under the law. U.S. Const.
amends. XIII–XV. As but one abominable example of judges "who
reject the meaning of the Constitution as enacted and wish to
substitute another meaning that they contend is superior," Randy
E. Barnett, Restoring the Lost Constitution: The Presumption of
Liberty 96 (2004), the United States Supreme Court in Plessy v.
Ferguson abandoned the constitutional guarantee of equality in
favor of its own "conception of individual rights and who is
entitled to those rights."30 Judges are not reliable protectors
of individual rights or liberty when they seek to replace the
original meaning of the Constitution with their own notions of
28 Id., ¶110.
29 Id.
30 Id., ¶109.
53
No. 2018AP2205-CR
the way things ought to be. "Only the Constitution can serve as
a reliable bulwark of the rights and liberty of the people."
State v. Roberson, 2019 WI 102, ¶86, 389 Wis. 2d 190, 935
N.W.2d 813 (Rebecca Grassl Bradley, J., concurring). For this
reason, we must apply the Constitution's original meaning, and
not what we may wish it to mean.
4. Ella's Compelled Speech Theory
¶92 Although in the course of day-to-day affairs Ella may
have to "present[] legal documentation," she does not explain
how presenting legal documentation bearing a "male-sounding
name" constitutes compelled speech. This theory fails for the
same reason her first theory does: identifying one's self is an
act, not a mode of expression. "[I]t has never been deemed an
abridgment of freedom of speech or press to make a course of
conduct illegal merely because the conduct was in part
initiated, evidenced, or carried out by means of language,
either spoken, written, or printed." Rumsfeld, 547 U.S. at 62(quoting Giboney, 336 U.S. at 502). "[W]ords can in some
circumstances violate laws directed not against speech but
against conduct." Id. (quoting R.A.V. v. St. Paul, 505
U.S. 377, 389 (1992)). Again, Ella offers no limiting
principle. When the government requires a person to accurately
list her hallmarks of identification on a tax form, the
government does not compel her to speak but merely to produce
information; Ella's claim is indistinguishable. United States
v. Arnold, 740 F.3d 1032, 1034–35 (5th Cir. 2014) (explaining
the Eighth Circuit had "rejected a claim that compelled
54
No. 2018AP2205-CR
disclosure of information on an IRS form [i]s unlawful compelled
speech" and applying the Eighth Circuit's logic to reject a
compelled speech challenge to a law requiring sex offenders to
register their residence (quoting United States v. Sindel, 53
F.3d 874, 878 (8th Cir. 1995))).
¶93 The State did not give Ella her legal name——her
parents did. Cf. Mutawakkil v. Huibregtse, 735 F.3d 524, 526
(7th Cir. 2013) ("He insists that Wisconsin's policy violates
the equal protection clause, even if not the first amendment,
because he thinks that 'Norman C. Green, Jr.' sounds like a
white man's name, and he is not white. Yet it is the name his
parents gave him; it was not forced on him by the state."). 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."
V. CONCLUSION
¶94 Under well-established precedent, Ella's claims fail.
Sex offender registration does not violate the Eighth Amendment
because it is not punishment, nor is it cruel or unusual,
particularly in light of Ella's offense for which the law
requires her registration. Ella's First Amendment right to free
speech does not encompass the power to compel the State to
facilitate a change of her legal name. Producing one's legal
name is properly understood as conduct, subject to government
regulation, not speech.
By the Court.——The decision of the court of appeals is
affirmed.
55
No. 2018AP2205-CR
56
No. 2018AP2205.bh
¶95 BRIAN HAGEDORN, J. (concurring). I agree with the
majority/lead opinion that C.G.'s First and Eighth Amendment
challenges to the name-change prohibition in the sex-offender
registry fail.1 See Wis. Stat. § 301.47(2). Accordingly, I join
the opinion in most respects.2 I write separately to make three
points.
¶96 First, the majority/lead opinion's analysis of C.G.'s
as-applied Eighth Amendment claim is improper. When analyzing
an Eighth Amendment claim, we are bound to apply United States
Supreme Court precedent. The Court has instructed that the
intent-effects test must be used to determine if a sanction is
punitive. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-70
(1963). This test considers whether a particular statutory
scheme is punitive on its face, not whether its application to a
particular person might be unduly harsh. Seling v. Young, 531
U.S. 250, 263 (2001). Looking to a statute's implementation or
person-specific effects "would prove unworkable" and is flatly
inconsistent with the test's focus on the face of the statute.
Id.; see also id. at 272-73 (Thomas, J., concurring). We said
as much just last term, explaining that the intent-effects test
"must be applied on the face of the statute, rather than to the
facts and circumstances of an individual defendant." State v.
Schmidt, 2021 WI 65, ¶30, 397 Wis. 2d 758, 960 N.W.2d 888.
1 Wisconsin Stat. § (Rule) 809.81(8) requires that in cases
like this we should "refer to individuals only by one or more
initials or other appropriate pseudonym or designation." I
refer to the defendant as "C.G." following our case caption.
2 I join the court's opinion except for ¶6 and ¶¶36-46.
1
No. 2018AP2205.bh
¶97 The majority/lead opinion correctly identifies this
principle, but then devotes several pages to an analysis of a
claim that the Supreme Court has called unworkable.
Majority/Lead op., ¶¶35-45. Analyzing the effects of the
statutory scheme on C.G. personally is antithetical to the
intent-effects test we must apply. This discussion does not add
clarity by analyzing an alternative claim; it increases
confusion by conducting an analysis that cannot be done for a
claim that does not exist. The better approach is simply to
reaffirm that the statutory scheme at issue here is not
punitive, and leave it there. See State v. Hezzie R., 219
Wis. 2d 848, 881, 580 N.W.2d 660 (1998); State v. Bollig, 2000
WI 6, ¶27, 232 Wis. 2d 561, 605 N.W.2d 199.
¶98 Second, it is important to note the limited nature of
our resolution of C.G.'s First Amendment challenge. C.G. has
failed to prove that the prohibition on name changes for
individuals on the sex offender registry infringes on C.G.'s
First Amendment right to freedom of speech. In the absence of
on-point case law, supportive historical evidence, or a
compelling argument, we cannot conclude——for what would appear
to be the first time in American history——that a person's legal
name contains expressive content subject to the First
Amendment's free speech protections. As the majority/lead
opinion explains, the prohibition on changing a legal name does
not prohibit a sex offender from saying or communicating a
preferred name, nor does it mandate the communication of any
particular content. It is possible that some name-related
2
No. 2018AP2205.bh
claims could implicate a person's free speech rights or trigger
other constitutional protections. But based on the arguments
and the precise claims before us, I am unpersuaded that the
prohibition in Wis. Stat. § 301.47(2) on changing one's name
while subject to the sex-offender registry's reporting
requirements involves any expressive conduct triggering the
First Amendment's free speech protections.
¶99 Finally, I write separately to address a sensitive
matter. The majority/lead opinion explains that it uses "female
pronouns out of respect for Ella's individual dignity,"
acknowledging "[n]o law compels our use of Ella's preferred
pronouns; we use them voluntarily." Majority/Lead op., ¶6 &
n.9. The dissent and the court of appeals make the same
editorial decision. Whether to use an individual's preferred
pronouns, rather than those consonant with one's biological sex,
presents ontological and moral questions about our identity as
human beings. It is a matter deeply personal to those who wish
to be called by certain pronouns, and to many who are asked to
call others by their preferred pronouns. See, e.g., Meriwether
v. Hartop, 992 F.3d 492 (6th Cir. 2021).
¶100 These relatively new cultural debates are, in the
main, not questions courts are well-equipped to answer. As a
court of law, we should do our best to remain agnostic regarding
debates where the law does not supply an answer. This is
motivated in part by the modest nature of the judicial role, and
in part out of the prudential concern that these contested moral
matters could soon become contested legal matters. The court's
3
No. 2018AP2205.bh
decision to use female pronouns could be misread as suggesting
that someone who identifies as a female is in fact a female,
under the law or otherwise. See also United States v. Varner,
948 F.3d 250, 254-58 (5th Cir. 2020) (presenting additional
reasons why the court's use of a party's preferred pronouns
could prove problematic). We should aim to avoid any unintended
legal consequences of our language choices.
¶101 C.G.'s decision to identify as a woman is grounded in
a particular way of understanding sex and gender——one rooted in
a person's individual sense of identity. This view is a
departure from what was widely accepted just a few years ago and
is by no means universally shared today. Without question, C.G.
should be treated with the same dignity and respect as any other
litigant before this court. 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.
¶102 For these reasons, I respectfully concur.
4
No. 2018AP2205.awb
¶103 ANN WALSH BRADLEY, J. (dissenting). Ella is a
transgender woman seeking to express herself by changing her1
name to reflect her gender identity in the face of a statute
that precludes it. One aspect of sex offender registration is
that a person subject to the registry cannot undergo a legal
name change. See Wis. Stat. § 301.47(2)(a). Ella challenges
that restriction.
¶104 At birth, Ella was assigned male, and her legal name
is traditionally masculine. Ella wishes to legally change her
name to a traditionally feminine name to correspond to her
gender identity. Specifically, Ella challenges the restriction
as applied to her on the basis of the First and Eighth
Amendments to the United States Constitution.
¶105 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
This dissent refers to Ella using her preferred pronouns.
1
The concurrence disagrees with this decision and refers to Ella
by her former masculine name (albeit with initials), citing the
avoidance of "unintended legal consequences." Concurrence,
¶100. However, its generalized speculation does not
specifically identify any legal consequences supposedly
implicated.
I remain unpersuaded by the specter of unidentified legal
consequences. Rather, like the majority/lead opinion, I refer
to Ella using her preferred pronouns "out of respect for Ella's
individual dignity." Majority/lead op., ¶6.
1
No. 2018AP2205.awb
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.
¶106 Admittedly, the facts of the underlying offense
indicate a "serious and forceful" attack, but that is not the
question presented here. See majority/lead op., ¶44.2 Rather
the question boils down to whether the State has met its burden
to show that this statutory restriction is narrowly tailored to
serve a significant government interest——as applied to Ella. If
not, then such a restriction cannot be constitutionally applied
to Ella's circumstances.
¶107 The majority fails to answer this question. It
arrives at a result that is contrary to First Amendment
precedent and discounts the burdens Ella faces as a result of
the restriction. Under the analysis that the majority should
have conducted, I conclude that Ella has established a violation
of her First Amendment rights and that the State has not met its
burden to demonstrate that Ella should be categorically banned
from filing a petition for a name change.
¶108 Accordingly, I respectfully dissent.
2I cite Justice Rebecca Grassl Bradley's opinion as a
"majority/lead" opinion because the opinion in its entirety has
not garnered a majority vote of the court. See concurrence, ¶95
n.2; Koss Corp. v. Park Bank, 2019 WI 7, ¶76 n.1, 385
Wis. 2d 261, 922 N.W.2d 20 (Ann Walsh Bradley, J., concurring).
However, the First Amendment analysis that this dissent takes
issue with is joined by four members of the court, so I
therefore refer in the body of this dissent to the "majority"
when discussing the court's conclusions with regard to the First
Amendment.
2
No. 2018AP2205.awb
I
¶109 At the outset I observe that although the majority's
historical journey back to the 18th and 19th centuries is
interesting, it is misplaced. In denying that Ella's choice of
name implicates the First Amendment, the majority attempts to
support its determination with reference to a "nineteenth
century English solicitor general," nineteenth century
commentators on English law, and practices prevailing at the
time of the founding. See majority/lead op., ¶¶81-84. With all
due respect, we are in the 21st century and our conception of
individual rights and who is entitled to those rights has
thankfully changed in the two centuries since these sources were
germane. See Obergefell v. Hodges, 576 U.S. 644, 660-63 (2015).
¶110 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.
¶111 But times change. Societies evolve. 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 that mark the
progress of a maturing society." Ford v. Wainwright, 477 U.S.
399, 406 (1986).
¶112 In this maturing society, it makes sense for us to
recognize the expressive power of a name. Just as there is a
First Amendment interest in a religious name, there is a First
3
No. 2018AP2205.awb
Amendment interest in a name that aligns with one's gender
identity.
¶113 The threshold question for the analysis of Ella's
First Amendment argument is whether the First Amendment is
implicated. It is in answering this question that the majority
goes astray, and I thus address this question first in this
dissent. Subsequently, I conduct the analysis the majority
should have completed, addressing the appropriate level of
scrutiny that should guide our analysis and applying that level
of scrutiny to the statute at issue in Ella's as-applied
challenge.
II
¶114 The majority's First Amendment analysis quickly veers
down the wrong path with its determination that the First
Amendment is not even implicated by a ban on name changes.
Majority/lead op., ¶72.
¶115 In the majority's view, "Ella's argument rests on a
faulty conception of expressive conduct." Id., ¶73. This is
so, says the majority, because "[t]he 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."
Id. Thus, the majority takes a narrow view of expressive
conduct, concluding that "[t]he act of producing identification
is conduct unprotected by the First Amendment." Id. The
majority further attempts to explain:
4
No. 2018AP2205.awb
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. . . . 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, e.g., dressing
in women's clothing, wearing make-up, growing out her
hair, and using a feminine alias.
Id., ¶75. Accordingly, the majority concludes that "identifying
one's self is an act, not a mode of expression." Id., ¶92.
¶116 The majority's conclusion is erroneous as a matter of
precedent and discounts the personal burdens the name change ban
foists on Ella. Contrary to the majority's view, the
proposition that a name is not expressive conduct implicating
the First Amendment goes against the tide of the relevant case
law.
¶117 Conduct is expressive if it "possesses sufficient
communicative elements to bring the First Amendment into play."
Texas v. Johnson, 491 U.S. 397, 404 (1989). This inquiry is
informed by whether conduct has the "intent to convey a
particularized message." Id. Changing one's name to reflect a
certain personal identity fits the bill.
¶118 A name can convey a person's family history, cultural
heritage, or religious devotion. And a name most certainly can
convey one's gender identity. It is a fundamental way a person
presents themselves to the world and is essential to a person's
5
No. 2018AP2205.awb
identity.3 Calling a person by that person's chosen name
indicates respect for that person's dignity and autonomy.
¶119 One need look no further than the daily news and
recent history to find a litany of name changes, the purpose of
which is to express an essential piece of a person's identity.
Cassius Clay became Muhammad Ali. Bruce Jenner became Caitlyn
Jenner.
¶120 When Cassius Clay changed his name to Muhammad Ali, he
did so not only to convey a religious identity, but to shed the
"slave name" he was given at birth. Similarly, when Bruce
Jenner became Caitlyn, she did so to express an essential piece
of her identity——her gender identity. These "particularized
messages" are certainly worthy of the label of "expressive
conduct."
¶121 "The First Amendment serves not only the needs of the
polity but also those of the human spirit——a spirit that demands
self-expression. Such expression is an integral part of the
development of ideas and a sense of identity." Procunier v.
Martinez, 416 U.S. 396, 427 (1974) (Marshall, J., concurring).
To deny the applicability of the First Amendment to protect the
expression of one's personal name in this as-applied challenge
3See Yofi Tirosh, A Name of One's Own: Gender and Symbolic
Legal Personhood in the European Court of Human Rights, 33 Harv.
J. L. & Gender 247, 255 (2010) ("Names——surnames included——play
a constitutive role in one's personhood (defining for oneself
and for one's social world a set of affiliations with past
generations and with present family) . . . ."); Kif Augustine-
Adams, The Beginning of Wisdom is to Call Things by Their Right
Names, 7 S. Cal. Rev. L. & Women's Stud. 1, 1 (1997) ("Naming
practices reflect conceptions of individuality, equality, family
and community that are fundamental to identity.").
6
No. 2018AP2205.awb
gives short shrift to the expressive nature of a name and the
dignity that the recognition of it carries. See id. ("To
suppress expression is to reject the basic human desire for
recognition and affront the individual's worth and dignity.").
¶122 Courts have previously recognized the right to use a
religious name, declaring that "[a] personal name is special."
Salaam v. Lockhart, 905 F.2d 1168, 1170 (8th Cir. 1990).
Indeed, "It may honor the memory of a loved one, reflect a deep
personal commitment, show respect or admiration for someone
famous and worthy, or . . . reflect a reverence for God and
God's teachings." Id. "Like a baptism, bar mitzvah, or
confirmation, the adoption of a new name may signify a
conversion and the acceptance of responsibilities of membership
in a community." Id. Accordingly, in the context of a
religious name, it has been established that "an inmate has a
First Amendment interest in using his religious name, at least
in conjunction with his committed name." Malik v. Brown, 71
F.3d 724, 727 (9th Cir. 1995) see also Salaam, 905 F.2d at 1170
n.4 (quoting Felix v. Rolan, 833 F.2d 517, 518 (5th Cir. 1987)
(per curiam)) ("The adoption of Muslim names by inmates
practicing that religion is generally recognized to be an
exercise of both first amendment speech and religious freedom."
(Emphasis added)).
¶123 These cases regarding religious names are a useful
analogue to Ella's claim here. Both a religious name and a name
that conforms to one's gender identity involve fundamental
aspects of a person's identity that are conveyed through the
7
No. 2018AP2205.awb
medium of a name. As the Eighth Circuit said in Salaam, a name
may "honor," "reflect," or "signify" essential elements of a
person's identity. Salaam, 905 F.2d at 1170. In other words, a
name may "express" such elements so as to implicate the First
Amendment's protections of expressive conduct.
¶124 Similarly, the United States Supreme Court has
declared that "[t]he Constitution promises liberty to all within
its reach, a liberty that includes certain specific rights that
allow persons, within a lawful realm, to define and express
their identity." Obergefell, 576 U.S. at 651-52. Additionally,
the Ninth Circuit has said: "Sexual identity is inherent to
one's very identity as a person." Hernandez-Montiel v. Immigr.
and Naturalization Serv., 225 F.3d 1084, 1093 (9th Cir. 2000).
It is "so fundamental to one's identity that a person should not
be required to abandon [it]." Id.¶125 Yet the majority requires Ella to abandon her gender
identity in any situation involving official documents. The
court of appeals' assertion, apparently adopted by the majority,
that "Ella has the right to use whatever name she chooses,"
rings hollow. Majority/lead op., ¶75 (citing State v. C.G.,
2021 WI App 11, ¶32, 396 Wis. 2d 105, 955 N.W.2d 443). Even if
Ella can use her feminine name in daily life, her driver's
license, passport, applications for public assistance, and any
other government document still require her to use her former
8
No. 2018AP2205.awb
masculine name.4 In other words, the government requires that
she express her fundamental identity as something she is not.
See Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev.
894, 951 (2019) ("Identity documents such as passports, driver's
licenses, and birth certificates can also play a meaningful role
in a person's conception of self.").
¶126 The majority seeks support for its result in the
Eastern District's recent determination in Krebs v. Graveley,
2020 WL 1479189 (E.D. Wis. Mar. 26, 2020), and the Seventh
Circuit's affirmance of that decision. Krebs v. Graveley, 861
F. App'x 671 (7th Cir. 2021). Krebs does not stand for the
broad proposition the majority asserts. It is true that Krebs
involves facts similar to those here: Krebs is a transgender
woman, named Kenneth at birth, seeking to legally change her
name to Karen. She cannot do so because she is a convicted sex
offender and is prohibited from legally changing her name.
¶127 Krebs argued that the name change statute violated her
First Amendment right in four ways: (1) it constitutes
compelled speech, (2) it restricts speech in a limited public
forum, namely the forum provided by Wisconsin for changing one's
name, (3) it regulates expressive conduct, and (4) the statute
"In the last few decades, and particularly since the
4
passage of the REAL ID Act of 2005, most everything people do is
subject to identification and subsequent recordation——from
opening a bank account or applying for a credit card to
receiving healthcare, buying alcohol, or taking an Amtrak
train." Adam Candeub, Privacy and Common Law Names: Sand in
the Gears of Identification, 68 Fla. L. Rev. 467, 469 (2016)
(footnote omitted).
9
No. 2018AP2205.awb
fails rational basis review. The Krebs opinion is certainly not
a legal exegesis on these issues.
¶128 Rather than squarely addressing the merits of Krebs's
claim, the district court rested its determination on Krebs's
failure to meet her burden and the rank inadequacy of the
briefing: "The Court will not engage in any such analysis in
this case, owing to the fact that Plaintiff has failed to
establish that Wisconsin's regulation of her ability to change
her name implicates her First Amendment rights. The parties
provide relatively scant attention to this matter." 2020 WL
1479189 at *1. "Plaintiff's only support for her position is a
decade-old, student-written law review article. This is not
legal precedent at all. It is a wholly insufficient legal basis
for the Court to agree with Plaintiff's viewpoint." Id. at *2
(citation omitted).
¶129 Notably, the district court went out of its way to say
that its holding was limited by the parties' arguments: "The
Court stresses the limitations of this holding. It is based
entirely upon the briefing presented in this case by these
parties." Id. The court expanded in a footnote:
Plaintiff's claim presents important and evolving
issues for our society. To be unable to address the
matter because of poorly constructed and researched
arguments seems a waste of time for all involved. But
as explained in Kay v. Board of Education of City of
Chicago, 547 F.3d 736, 738 (7th Cir. 2008), when a
"[district] judge [acts] sua sponte, the parties [are]
unable to provide their views and supply legal
authorities. The benefit of adversarial presentation
is a major reason why judges should respond to the
parties' arguments rather than going off
independently." It is for the parties, not the Court,
10
No. 2018AP2205.awb
to carefully select and craft the arguments they will
present to support their positions.
Id. at *2 n.3. The Seventh Circuit affirmed the district court,
again making its determination based on the inadequacy of
briefing. 861 F. App'x at 674.
¶130 Here, in contrast, the issue has been more than
adequately briefed. The parties have been ably represented by
counsel on both sides and we have heard extensively from amici.
The arguments are developed and the case cannot be summarily
dispatched for the same reason the Krebs court dismissed that
case. Contrary to the majority's assertion, Ella's arguments do
not suffer from the "similar defect" as those of Krebs. See
majority/lead op., ¶72. As the district court observed, Krebs's
arguments were practically nonexistent. As analyzed above,
unlike the plaintiff in Krebs, Ella has met her burden to
demonstrate that her First Amendment rights are implicated by
the name change ban.
III
¶131 Having determined that the First Amendment is
implicated by the sex offender registry's name change ban, the
next question, left unaddressed by the majority, is the
appropriate level of scrutiny to apply.
¶132 In this endeavor, we must examine whether the state
regulation at issue is content-based or content-neutral. State
v. Baron, 2009 WI 58, ¶14, 318 Wis. 2d 60, 769 N.W.2d 34. This
is important because "[a] content-based statute must survive
strict scrutiny whereas a content-neutral statute must survive
only intermediate scrutiny." Id.11
No. 2018AP2205.awb
¶133 Generally, a law is content-based if it distinguishes
favored speech from disfavored speech on the basis of the ideas
or views expressed. Id., ¶32. On the other hand, "laws that
confer benefits or impose burdens on speech without reference to
the ideas or views expressed are generally content neutral."
Id. (citation omitted).
¶134 The name change ban does not regulate based on the
content of the conduct. Instead, it affects all content
equally. Name changes based on religion are treated the same as
name changes based on gender identity, which are treated the
same as name changes "just because." The statute does not favor
one reason for a name change over another, or one name over
another, but bans all equally regardless of the motivation or
content.
¶135 Accordingly, I conclude that the name change ban is
content-neutral. Because it is content-neutral, intermediate
scrutiny applies. Id., ¶14.
IV
¶136 Having determined that intermediate scrutiny is the
proper framework for analyzing Ella's challenge, I turn next to
apply that framework, an analysis that, again, the majority
failed to conduct.
¶137 "The intermediate scrutiny test allows the government
to impose reasonable, content-neutral restrictions on speech
that are 'narrowly tailored to serve a significant governmental
interest.'" State v. King, 2020 WI App 66, ¶23, 394
Wis. 2d 431, 950 N.W.2d 891. "A condition need not be the least
12
No. 2018AP2205.awb
restrictive means of advancing the government's interests in
order to satisfy the 'narrowly tailored' requirement of
intermediate scrutiny. Rather, the standard is met so long as
the restriction 'promotes a substantial government interest that
would be achieved less effectively absent the regulation.'" Id.(citation omitted). We must additionally consider the burdens
of the regulation on free expression:
[A] government regulation is sufficiently justified if
it is within the constitutional power of the
Government; if it furthers an important or substantial
governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and
if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to
the furtherance of that interest.
United States v. O'Brien, 391 U.S. 367, 377 (1968). The burden
is on the State to demonstrate that the statute is
constitutional as applied to Ella. Baron, 318 Wis. 2d 60, ¶14.
¶138 Ella asserts that the registration requirement that
she not legally change her name fails this test as applied to
her because there is no substantial government interest in
subjecting her to the restriction and the corresponding burden
on her is significant. She contends that she is a low risk to
reoffend, she has no conduct disorder or personality disorder,
and law enforcement already has her preferred name listed as an
alias in its records. Ella further contends that being required
to continue to use her former masculine name exposes her to
discrimination, mistreatment, and even physical violence.
¶139 The State, on the other hand, asserts that the name
change ban furthers a significant governmental interest in
13
No. 2018AP2205.awb
protecting the public and assisting law enforcement. It
additionally argues that the regulation is sufficiently tailored
to achieve this interest. Specifically, the State contends that
law enforcement's ability to successfully track sex offenders
would be hampered absent the name change ban and that without
the ban those on the registry could create confusion by
repeatedly changing their names, especially if they used common
names. The State additionally argues that Ella's specific
circumstances do not alter the result. Despite the fact that
Ella was a juvenile when she was adjudicated delinquent, the
State argues that law enforcement has a substantial interest in
being able to quickly locate and identify Ella while she is on
the registry.
¶140 I agree with Ella. The State completely discounts the
burdens that Ella specifically faces from being categorically
unable to change her name (and the majority doesn't even address
the question). These severe and acute burdens manifest due to
both Ella's gender identity and her age.
¶141 The name change ban that accompanies sex offender
registration means that every time Ella has to complete an
official task, she must use a name that is inconsistent with who
she is. Any time she has to show a state-issued identification,
she is forced to identify herself as someone she is not. If she
applies for a public benefits program, checks into a hotel,
boards an airplane, or begins a new job, she must present
official documents that are inconsistent with her very identity.
See Clarke, supra ¶125, at 951.
14
No. 2018AP2205.awb
¶142 Further, requiring Ella to maintain a name that is
inconsistent with her gender identity and forcing her to out
herself every time she presents official documents exposes her
to discrimination and abuse. Sadly, such a concern is not
merely theoretical. "In a recent survey, 82 percent of
transgender Wisconsinites reported experiencing harassment or
mistreatment in the workplace. Significant numbers also
reported that they were discriminated against based on their
gender identity: 54 percent were not hired, 34 percent lost a
job, and 22 percent were denied a promotion." Joseph S.
Diedrich, Transgender Rights in Wisconsin, Wis. Law., Mar. 2018,
at 26;5 see also Lisa R. Miller and Eric Anthony Grollman, The
Social Costs of Gender Nonconformity for Transgender Adults:
Implications for Discrimination and Health, 30 Socio. F. 809,
826 (2015) (indicating that transgender people who have
transitioned report prejudice and discrimination "especially if
their legal documents do not reflect their present gender
identity").
¶143 These burdens are exacerbated by Ella's young age. As
she is just getting her footing in an independent life (a
difficult endeavor for any person regardless of gender
See also Ryan K. Blake, Transgender Rights are Human
5
Rights: A Contemplation of Litigation Strategies in Transgender
Discrimination Cases, 33 Wis. J. L. Gender & Soc'y 107, 115
(2018) (citing statistics indicating that unemployment for
transgender survey respondents was twice the national average).
15
No. 2018AP2205.awb
identity), she must also face the threat of discrimination every
time she simply uses a government identification.6
¶144 With regard to abuse, Ella's fears are similarly well-
founded. The record reflects that Ella was subjected to
physical violence due to her gender identity while incarcerated.7
Underscoring the uphill climb Ella faces in having her dignity
recognized, the Department of Corrections appallingly blamed
Ella for her own attack, stating essentially that she made
herself a target.
¶145 On the flip side, the benefit to the State in
requiring Ella to retain her former masculine name is minimal.
The easy tracking that the name change ban is purported to
foster would not be affected in the slightest by Ella changing
her name for the simple reason that law enforcement already has
See Sonja Shield, The Doctor Won't See You Now: Rights of
6
Transgender Adolescents to Sex Reassignment Treatment, 31 N.Y.U.
Rev. L. & Soc. Change 361, 362 (2007) ("The dangers that
transgender youth face during their adolescent years are
numerous, scarring, and often have permanent repercussions.");
Julia C. Oparah, Feminism and the (Trans)gender Entrapment of
Gender Nonconforming Prisoners, 18 UCLA Women's L. J. 239, 248
(2012) (explaining that certain burdens can be "exacerbated for
transgender youth under 18 years old, and those under criminal
justice supervision who need permission from a parent/guardian
or warden or parole officer in order to change either their name
or gender").
Ella's experience is tragically commonplace.
7 Data
indicates that transgender inmates are more likely to suffer
violence while incarcerated and that almost 40 percent of
transgender inmates experience sexual victimization while
incarcerated compared to four percent of all inmates. Stephanie
Saran Rudolph, A Comparative Analysis of the Treatment of
Transgender Prisoners: What the United States Can Learn from
Canada and the United Kingdom, 35 Emory Int'l L. Rev. 95, 109-10
(2021).
16
No. 2018AP2205.awb
"Ella" listed as an alias. 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. Law enforcement would still have both names and would
still tie them to the same person. The burden is purely
administrative, which pales in comparison to the burdens placed
on Ella.
¶146 The State's argument ultimately falters in its
consideration of Ella's as-applied challenge by discounting the
burdens the name change ban places on Ella specifically. In
light of the burdens Ella faces due to the name change ban, the
State's "interest" is insignificant. Where the government
already knows Ella's preferred name and ties it to her in any
database search, I am unpersuaded that the State has met its
burden that she should be categorically banned from making that
name her legal name, especially given the severe and acute
burdens Ella cites.
¶147 Does my conclusion mean that Ella can legally change
her name, case closed? No. If she wishes to follow through on
changing her name, she must still petition the circuit court in
her county of residence to legally change her name. Wis. Stat.
§ 786.36. Before legally changing Ella's name, the circuit
court must find that "no sufficient cause is shown to the
contrary." § 786.36(1). I do not comment on whether Ella's
petition, should she file one, be granted or denied. But under
the circumstances presented, Ella should not be categorically
17
No. 2018AP2205.awb
foreclosed from presenting a name change petition to the circuit
court.
¶148 As the district court stated in Krebs, this case
presents "important and evolving issues for our society."
Krebs, 2020 WL 1479189 at *2 n.3. I agree. Yet the majority
ignores such evolution with an incomplete and faulty legal
analysis that is contrary to precedent and discounts the burdens
Ella faces.
¶149 For the foregoing reasons, I respectfully dissent.
¶150 I am authorized to state that Justices REBECCA FRANK
DALLET and JILL J. KAROFSKY join this dissent.
18
No. 2018AP2205.awb
1