Transsexuals & their rights in marriage: KS Supreme Ct. ruling

Posted:
in General Discussion edited January 2014
<a href="http://www.kansascity.com/mld/kansascitystar/2869589.htm"; target="_blank">Kansas Supreme Court rules against transsexual in estate case</a>



[quote]The Kansas Supreme Court on Friday ruled that transsexual J'Noel Gardiner is a man under Kansas law and thus not entitled to share in the estate of her late husband, Marshall Gardiner of Leavenworth.



The 38-page ruling was a victory for Marshall Gardiner's son, Joe Gardiner, who contested J'Noel Gardiner's claim to half of his father's $2.5 million estate.



In its unanimous ruling, the Supreme Court said that while J'Noel Gardiner had "traveled a long and difficult road" that involved sex-change surgery, she remained a man for purposes of marriage.



"The Legislature has declared that the public policy of this state is to recognize only the traditional marriage between `two parties of the opposite sex,' and all other marriages are against public policy and void," Justice Donald L. Allegrucci wrote.



"We cannot ignore what the Legislature has declared to be the public policy of this state. Our responsibility is to interpret (the law) and not rewrite it. That is for the Legislature to do, if it so desires."



Marshall Gardiner was a widower and former stockbroker. He met J'Noel Ball, an assistant professor of finance at Park University, in 1998. He was 85; she was 40. They were married in September of that year.



He died in August 1999 and did not leave a will. When someone doesn't leave a will, under Kansas law the spouse gets half the estate and the heirs get half.



Joe Gardiner was Marshall Gardiner's only child.



In a recent interview, J'Noel Gardiner said that before the marriage, she told Gardiner that she once had been a man. She said he shrugged, "looked into my eyes and told me he loved me."



Across the nation, conservative and liberal groups watched the case closely. Interest is keen because the implications of "In the Matter of The Estate of Marshall G. Gardiner" are not just legal, they're primordial: What is a man? What is a woman? What is a marriage?



Some people on both sides of the political spectrum believed the case might have been a step toward the legalization of same-sex marriages, which are not recognized anywhere in the United States.



Vermont recognizes same-sex civil unions, which give couples benefits similar to those that come with marriage.



The Gardiner case has drawn national media attention. The New York Times, The Wall Street Journal and magazines published articles about the court proceedings.



Bill Duncan, director of Catholic University of America's Marriage Law Project in Washington, D.C., said the issue of gender will come up again because cases are popping up across the nation.



"We have a mission to reaffirm the legal definition of marriage as a man and a woman," Duncan said. "But we haven't thought that much about what makes a man a man and a woman a woman."



In a prepared statement, J'Noel Gardiner's lawyer, Sanford P. Krigel, said he and his client were disappointed at the ruling: "We believe that the Kansas Supreme Court's decision is a step in the wrong direction."



Krigel said an appeal to the U.S. Supreme Court was possible. His client also could request another hearing before the state Supreme Court.



Neither J'Noel Gardiner nor Joe Gardiner could be reached Friday.



Joe Gardiner's attorney, William M. Modrcin, said: "We're obviously pleased. We think the court, given the statute it had to interpret, made the right decision."



The state Supreme Court's ruling overturned a May decision by a three-judge panel of the Kansas Court of Appeals. The appellate court had held that there was more to gender than "simply what the individual's chromosomes were or were not at the time of birth."



The appellate court had ordered the case back to Leavenworth County District Court, where in 2000 a probate judge had ruled in favor of Joe Gardiner, 54. The appellate court directed the district court to consider several factors when deciding a person's sex. Those criteria included gender rearing, sexual identity and sex-change surgery.



The Supreme Court rejected those criteria, focusing instead on the letter of the law.



The Supreme Court opinion included definitions of "male" and "female" according to a 1970 Webster's dictionary. The definitions hinge on men's and women's ability to reproduce. The Supreme Court's reliance on those definitions drew either satisfaction or ire from legal experts, depending their viewpoints.



"There are many people who can't produce babies," said Anne Coughlin, a University of Virginia law professor. "Women in Kansas who have had hysterectomies or who are post-menopausal are going to be flipped out that they're not considered a woman. And a man who can't produce sperm isn't a man? Unbelievable."



Coughlin said the institution of marriage, according to Kansas law, seems to exist for reproductive function rather than other common reasons, such as companionship and financial security.



On the other hand, Lynn Wardle, a Brigham Young University law professor, applauded the court for allowing the legislature, as representatives of the people, to decide whether transsexuals can marry a person of their original sex.



Marriage, Wardle said, "is the core unit of social organization. When marriage becomes confused and unclear, as it has in our society, people suffer."



While rebuffing J'Noel Gardiner's main arguments, the Supreme Court went out of its way to say that it was not dismissing her claim lightly.



The ruling noted that J'Noel Gardiner had undergone electrolysis, thermolysis, tracheal shave, hormone injections and extensive counseling, in addition to sex-change surgery in 1994.



"Unfortunately, after all that, J'Noel remains a transsexual and a male for the purposes of marriage," Allegrucci wrote. "We are not blind to the stress and pain experienced by one who is born a male but perceives oneself as female. We recognize that there are people who do not fit neatly into the commonly recognized category of male or female, and to many life becomes an ordeal.



"However, the validity of J'Noel's marriage to Marshall is a question of public policy to be addressed by the Legislature and not by this court."

<hr></blockquote>



I dunno. <img src="graemlins/bugeye.gif" border="0" alt="[Skeptical]" /> <img src="graemlins/hmmm.gif" border="0" alt="[Hmmm]" />



[ 03-16-2002: Message edited by: CosmoNut ]</p>
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Comments

  • Reply 1 of 31
    It's shocking these days to find a Judge that still knows that s/he does not make the law but just fules on the written law.



    [ 03-16-2002: Message edited by: Scott H. ]</p>
  • Reply 2 of 31
    brussellbrussell Posts: 9,812member
    [quote]Originally posted by Scott H.:

    <strong>It's shocking these days to find a Judge that still knows that s/he does not make the law but just fules on the written law.</strong><hr></blockquote>But the problem was that the legislature didn't have a law addressing what would happen if someone who had a sex-change operation got married.
  • Reply 3 of 31
    [quote]Originally posted by BRussell:

    <strong>But the problem was that the legislature didn't have a law addressing what would happen if someone who had a sex-change operation got married.</strong><hr></blockquote>



    Oh yeah, and like this actually happens on a consistent basis...
  • Reply 4 of 31
    [quote]Oh yeah, and like this actually happens on a consistent basis...<hr></blockquote>



    <a href="http://ai.eecs.umich.edu/people/conway/TS/TSprevalence.html"; target="_blank">http://ai.eecs.umich.edu/people/conway/TS/TSprevalence.html</a>;



    An old survey says that perhaps 1 in 30,000 people are transsexual. That makes for perhaps at least &gt;8300 potential marriages in the US given a population of 250 million. However these figures are ancient history and current research indicates far more people undergo 'SRS' operations, and there are perhaps 40,000 transgendered women living in the U.S. right now. This doesn't even take into account those (an unknown number) who have 'gender issues' but cannot act upon it due to social etc etc pressures and standards.



    If the law in Kansas wasn't equipped to handle such a situation, then perhaps the judge was acting on his personal opinions. To deny these people rights and fairness under the law derives from nothing other than sheer bloodymindedness brought on by so much inbred puritannical and medieval BS. Period.
  • Reply 5 of 31
    fran441fran441 Posts: 3,715member
    If this proves any thing, it's to leave a will.
  • Reply 6 of 31
    powerdocpowerdoc Posts: 8,123member
    There is two kind of transexual : the real ones and the others (the majority).

    The real ones are people with endocrinologic problems, male XY chromosomic people but whit appearance of a women indeed for example. In this cases the surgery may be necessary (if the patient ask for it) and after it the civil status should change also.

    Many others are homosexuals people ( i do not say that all the homosexuals people want to change of sex ) who want to change of sex : i think it's a different problem, with different answer.



    If i graft on my cheek cat's mustaches, should i be describe on my passport as a tiger ? <img src="graemlins/lol.gif" border="0" alt="[Laughing]" />
  • Reply 7 of 31
    eugeneeugene Posts: 8,254member
    [quote]Originally posted by Samantha Joanne Ollendale:

    <strong>



    <a href="http://ai.eecs.umich.edu/people/conway/TS/TSprevalence.html"; target="_blank">http://ai.eecs.umich.edu/people/conway/TS/TSprevalence.html</a>;



    An old survey says that perhaps 1 in 30,000 people are transsexual. That makes for perhaps at least &gt;8300 potential marriages in the US given a population of 250 million. However these figures are ancient history and current research indicates far more people undergo 'SRS' operations, and there are perhaps 40,000 transgendered women living in the U.S. right now. This doesn't even take into account those (an unknown number) who have 'gender issues' but cannot act upon it due to social etc etc pressures and standards.</strong><hr></blockquote>



    Er...Heh.



    That link alleges 1 in 2500 males born within the time these surgeries were first made available has already gone through a sex change.



    Call me a skeptic. That seems way off. I don't know any transsexuals personally. I don't recall ever meeting one. Sure, I've seen a few, but not 1/2500...and I live in an area that probably has a higher density of them too.



    ...And I don't think it's because I can't tell the difference...I'm sure there are some out there that I wouldn't even suspect at all, but realistically this is not the case...



    [ 03-17-2002: Message edited by: Eugene ]</p>
  • Reply 8 of 31
    There's a lot of misinformation in this thread.



    Powerdoc, the people you are referring to as "true transsexuals" are actually ambiguously gendered and can have either an xy chromosome pair, or an xx pair. Transexuals are in no way automatically attracted to their original gender. Their own gender issues are not an integral part of their sexual preference.



    Scott H. I've gotta say that these judges are doing more to make the law than can actually be legally justified. They had to use a 30 year old Webster's Dictionary to find a suitibly limited definition of gender. Their ruling has just said that sterile men and women are not men and women and don't have the rights of marriage. This definition can't hold in court, and if they were to use a definition based on chromasomes, there would be several (probably only a few hundred) people who appeared to be women but had internal male sexual organs from birth who have no idea of their internal structure and who's marraiges should be technically void, but no one would know, so they would still be legally married.



    The institution of marriage is too effected by religious fundamentalists. If our nation is actually going to have freedom of religion and a separation of church and state. Transsexual as well as homosexual marraiges need to be allowed. Of course the other alternative is to remove all government involvement in marraige and leave that solely to the churches.



    pi
  • Reply 9 of 31
    moogsmoogs Posts: 4,296member
    Ya know...if people could just accept the bodies they were born with (and by extension themselves) we wouldn't have this problem of defining what a transsexual "is." So pathetic that in this day and age we have nothing better to concern ourselves with than what to label some poor schmuck who decided he didn't respect himself and so had his wiener chopped off (so he could be someoene else).



    Personally I couldn't care less. If you're dumb enough to do that to yourself, in the end you'll get what you deserve - a lot of grief and regret and confusion. Being born gay is one concept, being born gay and not wanting to admit it, so you change your sex to be who you "wish" you were is another.
  • Reply 10 of 31
    Moogs, read my previous post.



    Transexuality has nothing to do with sexual orientation.



    Also by your logic, if people were willing to just go around like walking apes, we wouldn't have had the peoblem of difining what civilization is. We are abstract thinkers. Defining things, and thinking beyond the physical object is what makes us human. The idea of transexuality is just a product of being able to think.



    pi
  • Reply 11 of 31
    moogsmoogs Posts: 4,296member
    Pikachu:



    I read the main post -- the main point was that the judges had to determine what gender this person was, in order to make a ruling. From that, I wrote my post. And of course transsexuality has to do with sexual orientation - or should we just leave motive out of our myriad abstract reasonings? Taking motive into account would complicate things, wouldn't it?



    It's not a great secret that most people who have sex change operations do so because they are attracted to the same sex, but do not want to have relations with them as a member of the same sex. Obviously there will be exceptions -- there are guys who have sex change operations and then still have relationships with women afterward, etc. But for the most part this is about "avoiding" homosexuality - it's about men who want to be with other men, but not AS a man (and vice versa).



    You can't tell me therefore, that sexual orientation has nothing to do with it.



    [ 03-18-2002: Message edited by: Moogs ? ]</p>
  • Reply 12 of 31
    stroszekstroszek Posts: 801member
    [quote]Originally posted by Moogs ?:

    <strong>Pikachu:



    I read the main post -- the main point was that the judges had to determine what gender this person was, in order to make a ruling. From that, I wrote my post. And of course transsexuality has to do with sexual orientation - or should we just leave motive out of our myriad abstract reasonings? Taking motive into account would complicate things, wouldn't it?



    It's not a great secret that most people who have sex change operations do so because they are attracted to the same sex, but do not want to have relations with them as a member of the same sex. Obviously there will be exceptions -- there are guys who have sex change operations and then still have relationships with women afterward, etc. But for the most part this is about "avoiding" homosexuality - it's about men who want to be with other men, but not AS a man (and vice versa).



    You can't tell me therefore, that sexual orientation has nothing to do with it.



    [ 03-18-2002: Message edited by: Moogs ? ]</strong><hr></blockquote>



    Moogs, I think that this issue mught be a little more complicated that you might expect. I don't have studies at hand, so don't ask me to quote sources, but many many transgendered people are not gay men who become women in order to have relationships with straight men. The woman who lived down the street from me used to be a man. a construction worker, at that. And you know what? she's now in a loving stable relationship with a woman. So by your logic, what does that make her?



    And just for kicks, I think I'll take issue with the term transsexual, because it doesn't really fit what everyone here is talking about. The term transgendered would be more appropriate.
  • Reply 13 of 31
    outsideroutsider Posts: 6,008member
    The woman who lived down the street from me used to be a man. a construction worker, at that. And you know what? she's now in a loving stable relationship with a woman. So by your logic, what does that make her?



    A person that regretted their decision?
  • Reply 14 of 31
    stroszekstroszek Posts: 801member
    [quote]Originally posted by Outsider:

    <strong>The woman who lived down the street from me used to be a man. a construction worker, at that. And you know what? she's now in a loving stable relationship with a woman. So by your logic, what does that make her?



    A person that regretted their decision? </strong><hr></blockquote>



    Nope. try again.
  • Reply 15 of 31
    brussellbrussell Posts: 9,812member
    [quote]Originally posted by Stroszek:

    <strong>The term transgendered would be more appropriate.</strong><hr></blockquote>How 'bout "the transgendered community."

  • Reply 16 of 31
    stroszekstroszek Posts: 801member
    [quote]Originally posted by BRussell:

    <strong>How 'bout "the transgendered community."

    </strong><hr></blockquote>

    well yeah. i was speaking more as a label for a single person. sorry for confusion.
  • Reply 17 of 31
    brussellbrussell Posts: 9,812member
    [quote]Originally posted by Stroszek:

    <strong>well yeah. i was speaking more as a label for a single person. sorry for confusion.</strong><hr></blockquote>Well, OK. But get it right next time, bucko. I'm easily offended.

  • Reply 18 of 31
    paulpaul Posts: 5,278member
    [quote]Originally posted by Stroszek:

    <strong>



    Nope. try again. </strong><hr></blockquote>



    wait, so you are saying he? was born male, but was really a lesbian so (s)he had a sex change so he/she(?) could be with other women as a woman? seems a bit extreme to me--what about children? <img src="confused.gif" border="0">
  • Reply 19 of 31
    bradbowerbradbower Posts: 1,068member
    Most of you are off-topic.



    This isn't about transsexual/transgendered/same-sex marriage, this is about two people that in the midst of a lack of such institutions failed to make/file a last will and testament, and one of them might even have circumvented laws against gay marriage by "transgendering" themselves. To de-evolve this into an argument about same-sex or initially same-sex marriage is to make a mountain out of a molehill. This was just a stupid mistake on these peoples' part, or at least the part transgendered person who knew they essentially had a same-sex marriage, and that mistake was not filing proper paperwork which EVERYONE should file.



    I tolerate transgendered people, but I don't personally agree with trying to be something you aren't. That's why, while I do think same-sex marriage should be legal, I don't see anything wrong with this ruling; if people can be allowed to change their gender, why can't people change their race, age, or disabled status? So what if I was originally white? I've made myself black now (excuse me, African American), and EOE should apply to me. So what if I'm under the age of 21? I have undergone operations to appear to be older, thus I am older, and I can drink booze, smoke cigars, and gamble to my heart's desire. So what if I'm not disabled? I'm declaring that I should have been born disabled and I feel in my soul I am disabled, thus I'm changing my disability status to seriously disabled, so I can deservably get Uncle Sam to line my wallets without lifting a finger. It's just silly... in the eyes of justice, you can't claim to be something you are NOT. Unless the case is you've got a chromosome defect, and you're XXY or XYY, in which case you are TRULY a loophole in terms of what gender you are, you can't just make these things up.
  • Reply 20 of 31
    eugeneeugene Posts: 8,254member
    What's worse is that it probably varies from state to state. I think in Texas, they make no exception for transsexuals in marriage. You are what your chromosomes say you are. In some states, a person who goes from man to woman can marry a man. In some states such a person can marry neither man nor woman.
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