Posts Tagged ‘Estate of Gardiner’

Transsexual’s Marriage Ruled Invalid By State Supreme Court

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.

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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