State v. C.G., 2022 WI 60, 7/7/22, affirming a published court of appeals decision, 2018AP2205; case activity
C.G. has the masculine legal name her parents gave her when she was born. When she was 15 years old she committed a sexual assault. At the time she was identifying as a male, but during and after the pendency of her juvenile case she began to transition to female. She wants to change her legal name to reflect her gender. But in Wisconsin, those on the registry are forbidden to change their names. C.G.–who is primarily identified by the pseudonym “Ella” in this confidential juvenile case–argued that forcing her to retain a masculine legal name violates her First Amendment right to free speech, and her Eighth Amendment right to be free from cruel and unusual punishment. Four justices disagree.
The legal analysis of the majority is mostly not worth discussing: suffice to say the discussion is fact-heavy, with descriptions of Ella, the boy who was assaulted, and the assault itself that leave no doubt as to how the court will be ruling on the legal merits. It does include a bizarre and irrelevant foray into post-independence English law. The majority also asserts flatly that there is no such thing as an as-applied Eight Amendment challenge as to whether a given statute is punitive. The three-justice dissent agrees that Ella’s Eighth Amendment claim fails, but would find the ban on a name change violates her First Amendment right to free speech.
The majority doesn’t work hard to appear impartial. Its opinion is fairly dripping with contempt for, in its words, “Ella, the Perpetrator,” the “supposed friend” of the boy she assaulted. But at least it does call her “Ella.” This is too much for Justice Hagedorn. He offers a concurrence declaring that his “scrupulously neutral” principles prevent him from referring to “Ella”–again this is a pseudonym–or using the word “her.” These neutral principles apparently can only be described in hand-wavy generalities: “These matters of grammar have downstream consequences that counsel caution, particularly as a court of law where such decisions could have unknown legal repercussions.” Calling a litigant by her preferred gender in an appellate opinion can have “unknown legal repercusssions”? This is just a fancy way of saying “just asking questions.“
