The Volokh Conspiracy
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Ban on Legal Name Changes by Sex Offenders Doesn't Violate First Amendment Rights of Transgender Offenders
Seems correct to me.
From today's Wisconsin Court of Appeals decision in State v. C.G. (opinion by Judge Mark Seidl, joined by Judges Lisa Stark and Thomas Hruz):
Wis. Stat. § 301.47(2)(a)-(b) provides that a registered sex offender may not "[c]hange his or her name" or "[i]dentify himself or herself by a name unless the name is one by which the person is identified with the [DOC]." [C.G. ("Ella")] … contends that, as applied to her, requiring her to register as a sex offender violates her First Amendment rights because the statute's prohibition against legally changing her name restricts her right to self-expression as being a female….
On May 10, 2016, the Shawano Police Department received a complaint that a fifteen-year-old male with disabilities, Alan, had been held down by Ella and Mandy while at Mandy's house, so that Ella could perform oral sex on him. {This opinion refers to the three juveniles as Ella, Alan, and Mandy…. [W]e use pseudonyms when referring to the juveniles in this confidential matter. Ella, a transgender female, prefers that we reference her using feminine pronouns, and we follow her preference.} At the time of her appeal, Ella was nineteen years old, but she was fifteen at the time of the incident. Ella sat on Alan's legs while Mandy held down his arms. Alan was five feet, ten inches tall and weighed 110 pounds. A face sheet from the DOC stated that Ella was six feet, five inches tall and weighed 345 pounds.
Alan is on the autism spectrum and is blind in his left eye. When Alan tried to yell for help from Mandy's parents, Mandy placed one of her hands over Alan's mouth. When Ella stopped the assault, Alan pulled up his underwear and pants and then left Mandy's house. Alan did not report the incident to anyone because he was embarrassed and Ella and Mandy had told him not to say anything. Alan's parents later learned of the incident after they searched his cell phone and discovered Facebook messages indicating that Alan had been held down while a person performed oral sex on him….
Ella pled no contest to … sexual assault [of a child under sixteen], and the disorderly conduct count was dismissed and read in. Ella was adjudicated delinquent, and the circuit court entered a dispositional order placing her at Lincoln Hills School for six to ten months….
[A.] Ella first argues that the circuit court erroneously exercised its discretion by refusing to stay the disposition requiring her to register as a sex offender…. The circuit court properly considered the seriousness of Ella's offense and its impact upon the victim when denying the request to stay the sex offender registry requirement despite Ella's relatively low risk of reoffense. Although Alan did not suffer bodily harm, the assault was indeed very serious. The court noted that Alan was held down against his will and was prevented from yelling for help. The court further noted that Alan suffered from autism, was progressing slower than his peers in school, had emotional and learning problems in school, and was blind in one eye. Although Ella and Alan were ten months apart in age, Alan was in therapy all his life, and his situation became worse after the assault. Indeed, Alan's mother testified that the assault has affected the whole family. As to the seriousness of the offense, the court reasonably found that Ella's sexual assault of Alan was violent in nature.
Ella's sexual assault was also nonconsensual and arguably premeditated. Prior to the sexual assault occurring, Alan expressed to Ella and Mandy that he was not interested in this type of behavior. Facebook messages reveal that Ella asked Alan if he had ever received "head" before. Alan repeatedly told Ella that he did not want "head" from Ella. Additionally, Alan told Mandy that he did not want to get "head" from a "guy." Although Ella notes that she, Alan, and Mandy were friends, the messages support the circuit court's findings that "[Alan] didn't want to have this type of relationship." Alan was also a vulnerable victim. He is blind in his left eye, a high school freshman functioning at a sixth-grade level, and suffers from attention deficit disorder and autism spectrum disorder. As stated above, Alan was much smaller than Ella. All of these facts strongly support the court's finding regarding the seriousness of the offense.
In Ella's supplemental reply brief, she attempts to minimize the seriousness of her offense and the impact on Alan by asserting that: (1) the offense was a very short incident between three individuals in the same friend group; (2) there was no violence or threat of violence; (3) it was Ella who stopped the encounter; (4) Alan did not report the incident; (5) Alan's parents did not note any changes in his behavior or attitude; (6) although Alan has autism with cognitive delays, he is still in mainstream schools with the ability to make friends; (7) Ella's physical description by the DOC was outdated; and (8) blindness is not a mental deficiency that rendered Alan incapable of understanding the consequences of his actions…. [But] the record contains ample evidence supporting the circuit court's discretionary decision to deny Ella's motion to stay the sex offender registration requirement. Based on the evidence presented, the court could reasonably determine that Ella failed to show by clear and convincing evidence that a stay should be granted….
[B.] Ella argues that the name-change ban in the sex offender registry statute regulates her right to express female identity and is therefore an unconstitutional burden on her free speech. Ella contends that having a name consistent with her gender identity gives her "dignity and autonomy that otherwise does not exist with her birth name." 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. This inability, according to Ella, prohibits her from truly identifying as a woman, and it also forces her to "out herself as a male anytime she is required to present her legal name." …
[But] Ella's wish to express herself with her desired name does not mean that the ban on legally changing her name implicates the First Amendment….. [A] prisoner ha[s] "no positive right to a name change." … Ella has the right to use whatever name she chooses, provided she includes it in the sex offender registry. Her freedom of expression is therefore not implicated. Neither the fact that she may feel uncomfortable when having to use her legal name, nor that she feels "outed" when she does use her legal name, renders the statute unconstitutional as applied to her. Ella is capable of expressing herself and identifying herself consistent with her gender identity. Because the name-change ban … does not restrict Ella's ability to express herself, we need not utilize a First Amendment analysis because the statute does not implicate the First Amendment.
Nonetheless, if we engage in a First Amendment analysis, we conclude that the name-change ban … is content neutral, and, thus, it does not trigger a strict-scrutiny analysis…. The name-change ban does not target speech based on its communicative content. Specifically, it does not apply to particular speech because of the topic discussed, or the idea or message being conveyed…. [I]t does not determine such matters as what name a person must use—or what must be contained in a name—and does not treat anyone differently based on their name.
The statute might be content based if, for example, it required a male to have a traditionally male-sounding name (e.g., William, John) and prohibited males from legally using "mixed-gender" names (e.g., Payton, Connie) or traditionally female-sounding names (e.g., Suzy, Mary). But, of course, the statute does not do so. The statute merely prohibits an individual from changing his or her current legal name, regardless of the message it conveys. Even if the name-change ban might disproportionately affect transgender persons, the statute is still content neutral. "[A] facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics."
As a content neutral statute, the name-change ban would at most be subject to intermediate scrutiny…. Wisconsin's statutory name-change ban for sex offender registrants easily passes intermediate scrutiny. Under the first prong of the Turner Broadcasting v. FCC test [for content-neutral restrictions], the name-change ban furthers an important or substantial government interest—specifically, to "protect the public and assist law enforcement." Allowing changes to a registrant's legal name would frustrate the ability of the public and law enforcement to quickly identify sex offenders and their locations.
Under the second prong of the Turner test, the governmental interest is unrelated to the suppression of free expression. As explained above, the name-change ban is content neutral and is justified without reference to the allegedly regulated "speech."
As to the third prong of the Turner test, the name-change ban is sufficiently tailored to achieve the State's important interest in efficiently tracking registered sex offenders. As noted above, the statute specifically enables Ella to express herself by using her desired name; she simply may not change her legal name. The name-change ban is sufficiently narrow in scope because it does "not 'burden substantially more speech than is necessary to further the government's legitimate interests.'" …
[C.] Ella also raises an as-applied challenge to the sex offender registry under the Eighth Amendment …, which prohibits states from imposing "cruel and unusual punishments." … Ella's argument regarding the Eighth Amendment fails because our supreme court has held that Wisconsin's sex offender registration requirement does not constitute punishment at all. In Bollig, the court held that "Wisconsin's registration statute does not evince the intent to punish sex offenders, but rather it reflects the intent to protect the public and assist law enforcement." …
While Ella concedes that, under Bollig, the purpose of the sex offender registry is civil and nonpunitive, she nevertheless argues that its effect is punitive as applied to her, given her transgender identity…. Our supreme court found in Bollig that the intent of the sex offender registry statute is not to impose punishment but, rather, to create a civil regulatory scheme to protect the public and assist law enforcement. Moreover, the effects of the statute, as a whole, are not so punitive as to render it criminal in nature. In asserting an as-applied challenge, Ella is attempting to relitigate the issue of whether mandatory sex offender registration is punitive due to its effects as applied to her. Ella cannot circumvent Bollig's holding simply by bringing an as-applied challenge.
