MARCH 18, 2002 VOLUME 9, NUMBER 38
When Marshall Gardiner died in Kansas in 1999, he was survived by his wife of less than a year and his grown son. Mr. Gardiner left no will, but he did leave a legal controversy—whether his wife could inherit from his estate, since she had been born as a man.
Elder Law Issues first reported on the question of J’Noel Gardiner’s legal right to inherit from her husband’s estate in June, 2001. That was when the Kansas Court of Appeals ruled that "gender" meant more than external sexual characteristics present at birth. The Court of Appeals ordered further hearings into J’Noel Gardiner’s "gender" to determine whether she could be legally considered a woman, and the marriage validated (read the original Issues article).
The Kansas Supreme Court has now reversed that decision from the lower appellate court. In a ruling last week, the highest court in Kansas determined that the marriage between Marshall and J’Noel Gardiner was invalid because Kansas law prohibits marriage between two persons of the same sex. Despite extensive sexual reassignment surgery—and even a new Wisconsin birth certificate indicating that she is a woman—J’Noel Gardiner was born a man and remains a man for purposes of marriage in Kansas.
The dispute arose because Joe Gardiner, Marshall Gardiner’s son, challenged J’Noel Gardiner’s standing as a surviving spouse. He cited not only the plain language of the Kansas statute but also the legislative discussions when the law was passed. The Kansas legislature had made clear that it felt that marriage between two persons of the same sex was a violation of Kansas’ public policy, and the Court decided that it was bound by the legislature’s decision.
The justices took the narrow view of gender: a person is and remains the gender indicated by sexual characteristics at birth. "A male-to-female post-operative transsexual does not fit the definition of a female. The male organs have been removed, but the ability to ‘produce ova and bear offspring’ does not and never did exist. There is no womb, cervix, or ovaries, nor is there any change in his chromosomes," wrote the Court, and therefore J’Noel Gardiner could not inherit from the estate of her "husband" Marshall. Estate of Gardiner, March 15, 2002.
The decision in the Gardiner case had been closely watched, of course, by attorneys and by advocates on both sides of the legal questions. The Court notes that there are a growing number of jurisdictions which have been forced to deal with similar issues. In 1999 the Texas Court of Appeals decided that a transsexual was not a "surviving spouse" for purposes of filing a wrongful death claim. In 1987 an Ohio court denied a marriage license to a couple on the basis that the proposed wife was born as a man.
One interesting exception to this trend appears in a case from the Sydney, Australia, family courts. In that case a marriage involving a postoperative female-to-male transsexual was sanctioned, based partly on a doctor’s report that his "brain sex" was male.