State v. C.G., 2021 WI App 11; petition for review granted 4/27; case activity
Ella–a pseudonym–was adjudicated delinquent for a sexual assault committed when she was 15. Ella’s legal name is masculine in association; during her juvenile disposition she was transitioning to a female identity. In this appeal she challenges the circuit court’s refusal to stay sex offender registration under Cesar G., and also submits that the registry’s prohibition on changing her legal name violates her First Amendment right to express her identity. The court of appeals upholds the circuit court’s discretionary decision on the former claim; on the latter it offers three blithe paragraphs of discussion before casually announcing–in a decision that is set to be published, and thus binding–that requiring a transgender woman to use a man’s name implicates no First Amendment concerns whatsoever.
While this case is about a person on the sex offender registry, it’s important to understand that the court’s holding here is not about whether the particular goals of the registration law justify abridging a registrant’s freedom of expression in a particular way. The opinion does engage in that analysis later–finding the law content-neutral and holding that it “easily” passes intermediate scrutiny–but this is merely an alternative ground for the court’s decision. (¶¶32-40). The court’s first holding is that a person–any person–simply has no protectable First Amendment interest in what his or her legal name is. (¶¶30-31). The necessary implication of this holding is that the government is free to impose any arbitrary restrictions it likes on legal name changes without violating the First Amendment.
There are quite a few cases to the contrary. A smattering: Barrett v. Com. of Va., 689 F.2d 498, 503 (4th Cir. 1982) (state ban on inmates legally changing names violated the First Amendment); Felix v. Rolan, 833 F.2d 517, 518 (5th Cir. 1987) (adoption of religious name by inmates implicates First Amendment freedom of speech); Salaam v. Lockhart, 905 F.2d 1168, 1169 (8th Cir. 1990) (§ 1983 action; state prison obligated to take reasonable steps to recognize inmate by legally changed name); In re Simpkins, 599 N.W.2d 170, 174 (Minn. Ct. App. 1999) (state court obligated to facilitate federal inmate’s name-change petition on First Amendment grounds).
As for the cases the court cites in support of this sweeping holding, there are two: a 1995 court of appeals case whose entire analysis consists of the (citation-free) statement that an inmate “has no positive right to a name change”; and a very recent Eastern District case that held only that the plaintiff had failed to make enough of an argument on the question to meet her burden. Williams v. Racine Cty. Circuit Court, 197 Wis. 2d 841, 846, 541 N.W.2d 514, 516 (Ct. App. 1995); Krebs v. Graveley, No. 19-CV-634-JPS, 2020 WL 1479189 (E.D. Wis. Mar. 26, 2020) (appeal pending).
The court also rejects Ella’s argument that requiring her, under circumstances requiring her legal name, to identify as a male constitutes cruel and unusual punishment under the Eighth Amendment. It cites State v. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199, in which our supreme court held that the registry itself is not punitive.
Regarding the circuit court’s decision not to stay the registration requirement, the discussion is long and fact-intensive and doesn’t much develop the law. Suffice to say that, as usual, the deferential discretionary standard of review is too much to overcome, no matter how compelling a positive case a defendant may make. (¶¶12-25).
