A recent case from the Supreme Court of Wisconsin, In the Interest of C.G.,[1] raised the issue of whether sex offender registration laws that forbid an offender from changing his or her legal name violate the Eighth and First Amendments when applied to an offender who identifies as transgender. In an opinion by Justice Rebecca Grassl Bradley, the court held that they do not.

The appellant is a biological male whose legal initials are C.G. but who now identifies as a transgender female and prefers a feminine name. The majority and concurring opinions debate how to address the appellant. The former uses a feminine pseudonym, Ella, and feminine pronouns “out of respect for Ella’s individual dignity,” while the latter uses the appellant’s legal initials, C.G., and avoids using pronouns “to remain scrupulously neutral.”[2]

At 15 years old, the appellant (with the aid of a friend) forcibly sexually assaulted another minor, was adjudicated delinquent in juvenile court, and was forced to register as a juvenile sex offender.[3] While the adjudicative process was ongoing, the appellant began identifying as a transgender girl and expressed the desire to change names.[4] Wisconsin’s sex offender registration laws, however, prohibit sex offenders from changing their names.[5]

The appellant claimed that this restriction, as applied, violated the Eighth Amendment’s prohibition on cruel and unusual punishments.[6] The court rejected that claim for two reasons. First, the court noted that the law “does not recognize as-applied challenges under the Eighth Amendment as to whether a statute is punitive.”[7] That question is determined “in the abstract, without reference to the ‘facts and circumstances of an individual defendant.’”[8]

Second, the court held that even if an as-applied challenge was permitted, it would still fail. The court held that registration laws are not punishments but public safety measures.[9] Moreover, the court held that, as applied here, they are “rationally related” to safety because of the particular facts of the assault. The appellant is 6-foot-5-inches tall and weighed 345 pounds at the time of the assault.[10] The victim, by contrast, is 5-foot-10-inches tall, weighed only 110 pounds, and suffers from several physical and mental disabilities.[11] The court concluded that the assault was so egregious that if an adult had committed it, he would face a sentence up to 40 years’ imprisonment and a $100,000 fine.[12] Accordingly, the court concluded, the law serves a valuable public safety function and is not punitive. In reaching this conclusion, the court considered the law’s myriad requirements together and did not show each one separately contributes to public safety in this case.

Turning next to the First Amendment, the court rejected the claim that the name-change prohibition infringes a right to express one’s gender identity. Citing other cases that rejected related arguments, the court held that the “expressive component” of transgender identity is not created by the legal name printed on a government-issued identification, but rather by the actions taken to present a particular identity such as wearing women’s clothing, hair, and make-up, and using a feminine alias.[13] The court noted that taking the appellant’s argument to its logical conclusion would require the government to equate “biological sex and gender identity.”[14]

The court then engaged in a historical analysis of laws prohibiting name changes and found that “the historical record contains no suggestion that anyone thought the First Amendment was implicated.”[15] Responding to the dissent, which rejected this historical analysis in favor of updating the law as “times change” and “[s]ocieties evolve,”[16] the court held that it was bound to reject “the philosophy of living constitutionalism” which “undermines democracy.”[17]

In a concurring opinion, Justice Brian Hagedorn wrote separately to make three points.[18] First, he thought that the consideration of the appellant’s as-applied Eighth Amendment claim was improper because the Supreme Court has rejected that sort of claim. Second, he noted that the court’s decision on the First Amendment claim was narrow and based only on the arguments presented. “It is possible,” he explained, “that some name-related claims could implicate a person’s free speech rights or trigger other constitutional protections.”[19] Finally, as mentioned above, Justice Hagedorn objected to the majority’s use of a female pseudonym and female pronouns because he thought doing so was a failure to “remain scrupulously neutral” and “could have unknown legal repercussions.”[20]

Justice Ann Walsh Bradley, joined by Justices Rebecca Frank Dallet and Jill Karofsky, dissented as to the First Amendment claim only. In her view, the court should update the law to match “evolving standards of decency.”[21] Society, she argued, is “maturing,” and so “it makes sense for us to recognize the expressive power of a name.”[22]

Although the cased focused on constitutional arguments related to transgender status, the debate between the majority and the dissent highlights the increasing influence of originalism in state courts and how Warren-esque theories of jurisprudence hang on there even though they have largely been abandoned in the federal courts and in legal scholarship.


[1] 976 N.W.2d 318 (Wis. 2022).

[2] Id. at 324; id. at 348 (Hagedorn, J., concurring).

[3] Id. at 323–24.

[4] Id. at 323.

[5] Id. at 331–32.

[6] Id. 330.

[7] Id.

[8] Id. (quoting State v. Schmidt, 960 N.W.2d 888, 897 (Wis. 2021).

[9] Id. at 333.

[10] Id. at 324.

[11] Id.

[12] Id. at 333 (citing Wis. Stat. § 939.50(3)(c) (West)).

[13] Id. at 341.

[14] Id.

[15] Id. at 342.

[16] Id. at 349 (Walsh Bradley, J., dissenting).

[17] Id. at 344.

[18] Id. at 346–48 (Hagedorn, J., concurring).

[19] Id. at 347.

[20] Id. at 348.

[21] Id. at 349 (Walsh Bradley, J., dissenting) (quoting Ford v. Wainwright, 477 U.S. 399, 406 (1986)).

[22] Id.

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