Ethics Quiz: Travails Of A Transgender Sex Offender

As Samuel L. Jackson would say if he were preparing to delve into this ethics quiz:

“Ella” is transgender woman now, whatever that means, but back when Ella was a 15-year-old boy, and stood 6-foot, 5-inches while weighing in at more than 300 pounds, she, though then a he, joined another teen in sexually assaulting a 110 pound autistic 14-year-old boy who was blind in one eye and autistic. The Pre-Ella then taunted the kid on Facebook. The male predecessor of Ella pleaded no contest to one count of sexual assault of a child under 16 years of age and spent time in two juvenile detention and treatment centers. Somewhere along the way Ella decided she needed to transition to female-hood, so when, in her new female-identifying edition, she was ordered to register as a sex offender, she objected. Under Wisconsin law, sex offenders must register a legal name and any aliases they use, and they may not legally change their name. That seems reasonable, since there is no point to legally registering as a sex offender to alert the community of sex offending proclivities if one can just foil the measure by using a different name.

Ella has been “Ella” since her teens and is now 22. She argued that requiring her to register as a sex offender under her male name given at birth violates her First Amendment right to express her true female identity. She also contended the registry requirement, as applied to her, amounted to cruel and unusual punishment under the Eighth Amendment, in essence making her out herself as a former him, or a former him trapped in a female body, or something.

The Wisconsin Court of Appeals rejected Ella’s claims,  and last week, four mean old conservatives outvoted the court’s liberal members on the Wisconsin Supreme Court also denied Ella’s attempt to change her name after hearing arguments in the case in February.

Justice Rebecca Grassl Bradley wrote for the majority, “Consistent with well-established 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.” She then ejected the free speech argument, stating  “We further hold Ella’s right to free speech does not encompass the power to compel the state to facilitate a change of her legal name.”

Your weird Ethics Alarms Ethics Quiz on this weekend is this:

“Is the court’s holding fair to Ella?”

The court threw out the “cruel and unusual punishment” argument, and the three dissenters didn’t buy it either, on the grounds that the requirement of registering as a sex offender wasn’t punishment (it is a necessary safety accommodation for the community based on the tendency of sex offenders to continue to be driven to sexually offend), but even if it were punishment, no state or court has found it to be “cruel,” and it is hardly unusual.

I think it’s cruel in this instance, and Ethics Alarms has discussed the problem of the sex offender registry several times before. It seems especially cruel when the sex offender was a teen when the offense occurred. These laws smack of pre-crime, and juvenile offenders like Ella never fully pay their debt to society like other felons, even those who have committed worse crimes. Their punishment is ongoing, and forever.

On Ella’s First Amendment claim, I come out on the other side. Ella’s theory, as stated by the majority opinion, is that “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 that “registration not only prevents Ella from expressing her identity, it compels speech by forcing Ella to disclose her transgender status.”

On the second argument, “Oh come ON.” Absent a photo we can only speculate, but I don’t believe that a 6’5″ former biological male who once weighed over 300 pounds needs a male name to tip off people that she’s probably transgender. On the first, as the majority points out, there are many ways available to Ella to “fully expressing her identity.” These include using a female name. She is only prohibited from changing it legally; why is that a big deal? John Wayne never changed his name legally from Marion Morrison.

Yet by the same logic, why does the law prevent a registered sex offender from changing his or her name if the offender still has to register it anyway? As applied to Ella, the prohibition seems petty.

What do you think?

7 thoughts on “Ethics Quiz: Travails Of A Transgender Sex Offender

  1. I think I have zero sympathy for someone who rapes an autistic kid and then taunts them about it afterwards. I get the whole teen not fully formed brain thing, but there is no way you can convince me that 15 year old Ella didn’t know rape is wrong. I think the court gave Ella Justice.

    • Absolutely. But no law is perfect and certain to apply to all circumstances, which is why claims like this are not frivolous. There were no registered sex offenders when the Constitution was written. A Court wouldn’t be legislating to find such laws 8th Amendment violations. The same goes for the “no name change” requirement. If a court found that it discriminated against trans individuals, it wouldn’t be legislating from the bench.

      • Using the name change thing to avoid having to register as a sex offender has echoes of the rationalization/excuse “That’s not who I am.” Strikes me as super suspect. Who’s this guy represented by? Some advocacy group, using him as a battering ram?

  2. How does the convicted felon reconcile the idea the claim that she was born a woman in a man’s body while simultaneously asserting that she was a male during her teen years. You cannot have it both ways. Let her change her name and register all names on the register. This will set back the trans-advocacy agenda because Ella will be the poster child for those wanting to keep some facilities separate along biological lines.

    Personally, I am against registries of this sort that are freely available to the public because the public is often ignorant of the facts and act on emotion. I have mixed feelings on them being available only to law enforcement. However, as long as the professionals keep insisting that pedophilia is a hardwired disease of the brain and recidivism is likely then I will guess I have to accept that such lists need to exist.

    My only question is if society believes an 8-year-old is able to determine his or her gender or sexuality; and all of this is hard wired from birth and should be given birth control or other contraceptives without parental involvement, why does society also want to punish people who were hardwired to prefer children sexually. This question is pure rhetorical and offered only to show what I consider the fallacy of the reasoning behind pushing transgenderism and gender identity among prepubescent children in schools.

  3. Yet by the same logic, why does the law prevent a registered sex offender from changing his or her name if the offender still has to register it anyway? As applied to Ella, the prohibition seems petty.

    I think it is pretty clear that one could sneak into a court district out of state, change their name, get new ID cards, and then then simply not re-register in the system for either state. In a Federal system, records are not necessarily readily accessible between state courts. Combined with any privacy requirements for a gender-change that a state may have, and the records may get sealed.

    The requirement to register both names may exist, but it is only as effective as the honesty of the offender. A barely clever offender could slide right through the crack. This happened in my own town to a suspected murder suspect, who fled the state and lived under an assumed name. I can only image changing one’s name under the color of law would only make tracking even more difficult.

    The Federal law is a bit ham fisted, but it solves this problem. The court looks up the offender, sees he/she is listed in another state, and denies the petition for name change. It removes the issue from the court’s discretion. It plugs one potential leak in an already rusty bucket.

    For Ella’s case, I can’t see it is as an injustice that she cannot legally change her name. Rather, being on the registry for life (or a significant portion there of) for a juvenile offense might be an injustice. The name change impact is perhaps an unfortunate collateral impact, but the integrity of the already shaky registry must be maintained.

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