According to the Wisconsin Supreme Court, the fact that a transgender woman can't change her legal name because she's on the sex offender registry as a male does not amount to cruel and unusual punishment, or violate her free speech rights.
The 4-3 decision last 7 July took up 81 pages in three opinions that featured some stark differences about "originalism" and adapting law to modern times, and even sharp differences about pronoun use.
The woman, now 22, is identified in majority opinion by a pseudonym, Ella. She was 14 — and a male — when she was adjudicated for a violent sexual assault of a much smaller, autistic, fellow ninth grade boy. She was sent to juvenile prison and ordered to register a sex offender for 15 years.
Writing for the majority, Justice Rebecca Bradley upheld lower court findings that sex offender registration is not punishment under the Eighth Amendment, and even if it was, it is neither cruel nor unusual.
Ella also argued the name change ban violates her First Amendment right to express her gender identity. She also contended the offender registration compels other speech by forcing her to disclose her transgender status every time she must present ID with her masculine name.
In a 58-page majority opinion, Bradley — after much historical analysis — found that a legal name doesn't trigger the First Amendment, and noted Ella can still go by her chosen alias.
"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."
In a concurrence, Justice Brian Hagedorn remarked, "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."