What’s in a name?

When God changes a name in the Bible, like from Abram to Abraham, He does so by divine decree. Getting your name changed legally in the United States requires more paperwork and due process but, in general, at the cost of a few hundred dollars and the inconvenience of a half-hour court hearing, it’s pretty straightforward. Unless you are a sex offender. In that case, the state of Wisconsin prohibits you from changing your name to maintain the integrity of its sex offender registry, which many rely on to keep children safe. The constitutionality of that law was tested in early July in the Wisconsin Supreme Court.

Seven years ago, a 15-year-old boy used significant physical power to force a same-sex sex act upon a classmate, a 14-year-old boy with autism. The perpetrator was sentenced to less than a year in a juvenile facility. The court also ordered registration for 15 years as a sex offender because of the violent nature of the act and the disparity in capabilities between the offender and the victim.

The case came to Wisconsin’s highest court, not because of a contest over guilt or innocence but a request from the perpetrator to change names. Since the incident, the perpetrator has gone through a gender transition process, self-identifies as a female, has come out to the community, and uses a female name in the world. Under the law, however, the name remains the original male name, and Wisconsin statutes prohibit sex offenders from exercising the option to legally change their name otherwise available to citizens in general.

The perpetrator, identified by the court as “Ella,” argues for “a fundamental right to express her authentic gender identity,” and that this fundamental right (which is another way of saying constitutional right) overrides Wisconsin’s sex offender registration statute. The perpetrator grounds this in Obergefell v. Hodges, the U.S. Supreme Court’s decision on same-sex marriage, and in a First Amendment free speech claim (the right to express a “true” gender identity).

Thankfully the court’s majority rejects these claims. Those justices rightly conclude that our names are not our own—they belong to us but also to the community as embodied in the state, such that you could not, for instance, change your name to a swear word or racial epithet. Indeed, the court does the hard work of looking to English and American history, digging through the treatises and dusty old decisions to determine the traditional scope of name changes in the law. This leads the majority to conclude that though the First Amendment is broad and Obergefell has lots of sweeping language about sex and identity, neither includes a right for a sex offender to change his name.

But such a result, which may seem obvious, was actually a narrow decision. The court ruled only 4 to 3, just one vote away from recognizing a federal constitutional right to force the state to recognize one’s transgender name change. The three justices in the dissent rejected the originalist history cited by the majority, arguing that the times have changed, “societies evolve.” Instead of looking backward to esoteric sources to define the contours of modern existence, they claimed that we should instead look, as we do in other contexts, to “evolving standards of decency that mark the progress of a maturing society.” The dissenting justices continue by stating that “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.”

These three justices were supported in their alternate conclusion by a who’s who of the legal left: the American Civil Liberties Union, the Juvenile Law Center, the National Center for Lesbian Rights, and the Lambda Legal Defense and Education Fund. And their dissenting opinion relies less on law than on law review articles, like “A Name of One’s Own: Gender and Symbolic Legal Personhood in the European Court of Human Rights” from the Harvard Journal of Law & Gender, “They, Them, and Theirs” from the Harvard Law Review, and “The Doctor Won’t See You Now: Rights of Transgender Adolescents to Sex Reassignment Treatment” from the NYU Review of Law and Social Change.

The titles of these articles and the journals in which they are published illustrate the fundamental divide in the law. For the conservative majority, the right sources of law (as in how to read the First Amendment) are treatises and common law practices from English and American history around the time the Bill of Rights was written. The liberal justices look to what they claim are evolving standards of decency, as defined by authorities such as the European Court of Human Rights and the American legal professoriate. This is the stark divide that defines modern jurisprudence, but no legal debate can thwart the natural laws that come with the givenness of biological reality.