Marriage Involving Transsexual Challenged By Decedent’s Son

JUNE 4, 2001 VOLUME 8, NUMBER 49

Marshall and J’Noel Gardiner were married in Kansas in September, 1998 after a short courtship. At the time Mr. Gardiner was 85, his new wife was 40. Mr. Gardiner died less than a year later, survived by Mrs. Gardiner and one son, Joseph Gardiner. Mr. Gardiner had not gotten around to writing a will, which under Kansas law meant that Mrs. Gardiner would normally inherit a portion of his estate. There is an interesting wrinkle to that basic story, however—J’Noel Gardiner was born a man.

Mrs. Gardiner, nee Jay N. Ball, had long thought of herself as a woman. Beginning in 1991 she started a course of treatment including electrolysis, hormone therapy, counseling and, ultimately, surgery. In 1994, after the completion of her sexual reassignment surgery, she petitioned the Wisconsin courts (she had been born in that state) for an order amending her birth certificate. It was four years after that process was completed that she first met Marshall Gardiner.

Kansas law, like the law of many states (including Arizona), prohibits marriages between two people of the same sex. The courts were faced with a difficult problem: is J’Noel Gardiner legally a man or woman?

After legal arguments the Kansas trial judge decided that Mrs. Gardiner is biologically a man, and the marriage therefore invalid. Mrs. Gardiner appealed that decision, and the Kansas Court of Appeals reversed the trial judge’s decision in a thoughtful and reflective opinion.

Biological, psychological and legal questions are intertwined in the Gardiner saga. Since Wisconsin had officially declared Mrs. Gardiner to be female, did the Kansas courts even have the right to question her sexual identity? If so, did the fact of her chromosomal makeup prohibit her from marrying a man—and if it did, what effect would that have on other individuals who might have chromosomal ambiguities like XXY, XYY and XO? If the defining element of sexual assignment is neither chromosomes nor birth certificates, how should the law determine sexual identity?

The Kansas Court of Appeals rejected each of the easy answers. Using chromosomal evidence alone, reasoned the Court, could preclude others with ambiguous chromosomes from every legally marrying—a particularly harsh result since some individuals with ambiguous chromosomes are not even aware of the fact. Relying solely on birth certificates, passports and other official documents would prevent a full analysis of the facts in individual cases.

The trial judge had granted summary judgment, determining that Mrs. Gardiner’s gender at birth was the only issue to be considered. The Court of Appeals reversed that decision and directed a thorough review of the validity of Mr. and Mrs. Gardiner’s marriage. That review, according to the Court of Appeals, should consider chromosomal makeup as well as a variety of other determinants of sexual identity. The opinion specifically recognizes gonadal sex, internal morphologic sex, external morphologic sex, hormonal sex, phenotypic sex, assigned sex and gender of rearing, and sexual identity. In addition, advancements in the science of sexual identity should be considered in cases arising in the future. Estate of Gardiner, May 11, 2001.

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