2022 WI 60

SUPREME 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 443

PDC 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 
2

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. 
2022 WI 60

NOTICE

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,

 Petitioner-Respondent,

 v.

C. G.,

 Respondent-Appellant-Petitioner.

FILED

JUL 7, 2022

Sheila T. Reiff

Clerk of Supreme Court

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 

2

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.
No. 2018AP2205-CR 

3

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 wellestablished 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 

 

4 See 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[.]").

5 All subsequent references to the Wisconsin Statutes are to 

the 2019–20 version.
No. 2018AP2205-CR 

4

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 
No. 2018AP2205-CR 

5

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).
No. 2018AP2205-CR 

6

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-foot10-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 ninthgrader 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."
No. 2018AP2205-CR 

7

¶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 sexuallyexplicit 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 
No. 2018AP2205-CR 

8

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
No. 2018AP2205-CR 

9

¶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 
No. 2018AP2205-CR 

10

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.
No. 2018AP2205-CR 

11

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.
No. 2018AP2205-CR 

12

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 
No. 2018AP2205-CR 

13

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. MendozaMartinez, 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 
No. 2018AP2205-CR 

14

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 
No. 2018AP2205-CR 

15

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 
No. 2018AP2205-CR 

16

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 
No. 2018AP2205-CR 

17

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").

 

13 Senator Darling did not describe registration as a 

penalty; she did discuss statutory penalties for failing to meet 

registration requirements.
No. 2018AP2205-CR 

18

¶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 
No. 2018AP2205-CR 

19

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, 
No. 2018AP2205-CR 

20

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 nonpenal, "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 asapplied challenge, her claim still fails.14 In other words, even 

 

14 Justice Brian Hagedorn deems the analysis of Ella's asapplied 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 asapplied challenge in the context of the Eighth Amendment is 

indeed unworkable, both substantively as well as temporally. 
No. 2018AP2205-CR 

21

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 
No. 2018AP2205-CR 

22

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. 

 

15 The State informs us in its brief that Ella's legal name 

does not appear in the online sex offender registry.
No. 2018AP2205-CR 

23

¶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. 
No. 2018AP2205-CR 

24

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 
No. 2018AP2205-CR 

25

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).
No. 2018AP2205-CR 

26

¶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
No. 2018AP2205-CR 

27

¶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 

 

16 But 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.").
No. 2018AP2205-CR 

28

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 

 

17 We focus on the meaning of "cruel" because United States 

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.
No. 2018AP2205-CR 

29

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 
No. 2018AP2205-CR 

30

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 
No. 2018AP2205-CR 

31

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 

 

18 Ella's Br. at 33 (citing Doe ex rel. Doe v. Yunits, 

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)).
No. 2018AP2205-CR 

32

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 NameChange 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.").
No. 2018AP2205-CR 

33

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)).
No. 2018AP2205-CR 

34

¶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 
No. 2018AP2205-CR 

35

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 
No. 2018AP2205-CR 

36

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 
No. 2018AP2205-CR 

37

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 
No. 2018AP2205-CR 

38

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 
No. 2018AP2205-CR 

39

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. 

 

21 Although 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).

22 States may have an affirmative duty to make certain 

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 
No. 2018AP2205-CR 

40

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.
No. 2018AP2205-CR 

41

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 

 

23 Kushner argued viewpoint discrimination, in the context 

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.
No. 2018AP2205-CR 

42

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-ofspeech 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 

 

24 Ella cites cases that are not on point. For example, she 

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 
No. 2018AP2205-CR 

43

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.
No. 2018AP2205-CR 

44

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 
No. 2018AP2205-CR 

45

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.
No. 2018AP2205-CR 

46

¶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 
No. 2018AP2205-CR 

47

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] commonlaw 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.
No. 2018AP2205-CR 

48

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 
No. 2018AP2205-CR 

49

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 preexisting 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 
No. 2018AP2205-CR 

50

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 
No. 2018AP2205-CR 

51

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.
No. 2018AP2205-CR 

52

¶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.
No. 2018AP2205-CR 

53

¶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.
No. 2018AP2205-CR 

54

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 
No. 2018AP2205-CR 

55

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.
No. 2018AP2205-CR 

56
No. 2018AP2205.bh

1

¶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.
No. 2018AP2205.bh

2

¶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 
No. 2018AP2205.bh

3

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 
No. 2018AP2205.bh

4

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.
No. 2018AP2205.awb

1

¶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 

 

1 This dissent refers to Ella using her preferred pronouns. 

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. 
No. 2018AP2205.awb

2

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.

 

2 I 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.
No. 2018AP2205.awb

3

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 
No. 2018AP2205.awb

4

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: 
No. 2018AP2205.awb

5

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 
No. 2018AP2205.awb

6

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 

 

3 See 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 AugustineAdams, 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.").
No. 2018AP2205.awb

7

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 
No. 2018AP2205.awb

8

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 
No. 2018AP2205.awb

9

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 

 

4 "In the last few decades, and particularly since the 

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).
No. 2018AP2205.awb

10

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, 
No. 2018AP2205.awb

11

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.
No. 2018AP2205.awb

12

¶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 
No. 2018AP2205.awb

13

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 
No. 2018AP2205.awb

14

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.
No. 2018AP2205.awb

15

¶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 

 

5 See also Ryan K. Blake, Transgender Rights are Human 

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).
No. 2018AP2205.awb

16

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 wellfounded. 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 

 

6 See Sonja Shield, The Doctor Won't See You Now: Rights of 

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").

7 Ella's experience is tragically commonplace. 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).
No. 2018AP2205.awb

17

"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 
No. 2018AP2205.awb

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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.
No. 2018AP2205.awb

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