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Tuesday, Mar. 26, 2002

Just after its decision to discourage the teaching of evolution in public schools (later reversed), Kansas has once again embraced the laws of the Creator--only this time, the topic is marriage.

Twice citing a prior Texas opinion referring to sex as something "fixed by our Creator at birth," the Kansas Supreme Court overturned the decision of an intermediate appellate court that had recognized that, for purposes of marriage, a sex-reassignment operation could change one's legal sex. For the Kansas Supreme Court, sex is a function of what you're born with, not what a surgeon creates.

What's fascinating about the Kansas Supreme Court's decision, In re Gardiner, is not necessarily the holding - which will affect a relatively small group of individuals, those who are, or are contemplating becoming, post-operative transsexuals. It is the holding's logical consequences.

The Early Stages of the Gardiner Case

This case, which I described in detail in an earlier column, arises out of the May-December wedding of J'Noel Ball, a post-operative male-to-female transsexual, and her much older millionaire paramour, Marshall Gardiner.

When Gardiner died intestate (that is, without a will), J'Noel claimed her law-given spousal share ($1.25 million). (An earlier column on Anna Nicole Smith's marriage explains in detail the consequences of dying intestate, and the concept of the spousal share). However, his son, Joe, challenge J'Noel's claim. Joe asserted that J'Noel's marriage to his father was invalid because, he argued, it violated Kansas's ban on same-sex marriage.

Joe won round one, convincing a district court that an individual who is born male, but becomes anatomically female, remains a male. But J'Noel won round two.

That is, J'Noel convinced the appellate court that chromosomes (which determine birth sex) are only one factor in determining someone's sex at the time of marriage, and that subsequent treatments to harmonize one's psychological and physical self can change one's sex.

Joe's Two Contradictory Arguments

Now Joe has won round three. The Kansas Supreme Court decided to hear the case last fall, and finally issued its opinion this week. The legal task for the court was one of statutory interpretation. Kansas, like many states, has a statute (Section 23-101 of the Kansas Code) defining marriage "as a civil contract between two parties who are of the opposite sex." The question is, What is "sex"?

Joe, seeking to invalidate his father's marriage, made two arguments that seem odd when juxtaposed. First, he argued that "sex," as used in the statute, means "birth sex," and thus that a male-to-female transsexual (such as J'Noel) could not legally marry a man (such as his father) because both shared the same birth sex. On Joe's theory, as Joe, through his attorney, admitted, a transsexual (such as J'Noel) could, however marry a woman, because they would have different birth sexes - even though the result would be a marriage between two individuals sharing both the outward appearance and sexual apparatus of females.

Second, without skipping a beat, Joe argued that the reason the statute must be construed in this way is because the legislature intended to "uphold traditional marriage." One would think, however, that Joe's second argument contradicts his first. Joe admits his theory would allow marriage between two persons who appear female and, sexually, are female. Yet certainly that would not be a traditional marriage in Joe's or Kansas's view.

The Kansas Court Accepts Both of Joe's Two Contradictory Arguments

That a litigant makes inconsistent arguments is no surprise, but when a court blindly adopts them it is noteworthy. And that is exactly what happened here.

The Kansas Supreme Court agreed with Joe's arguments - relying on an assortment of dictionary definitions and the reasoning of a recent Texas case it found persuasive, Littleton v. Prange.

Based on these sources, the court held that the "plain, ordinary meaning of 'persons of the opposite sex' contemplates a biological man and a biological woman and not persons who are experiencing gender dysphoria. A male-to-female transsexual does not fit the definition of a female." Thus, the court concluded, J'Noel "remains . . . a male for purposes of marriage" under Kansas law. The upshot was that J'Noel, since her marriage was void, was not entitled to a spousal share, and lost the $1.25 million - which then went to Joe.

The court found the conclusion that J'Noel was "male for purposes of marriage" to be consistent with the underlying purpose of the Kansas marriage statute. The statute had been amended in 1975 to clarify that marriage could only legally occur between members of the opposite sex. And the legislature, the court noted, viewed "opposite sex" in the "narrow traditional sense" - defined by reference to the role played in marriage and the ability to reproduce. Accordingly, this approach that considered biological sex alone in determining sex for purposes of marriage was, the court thought, in step with the statute's overall purpose to recognize only "traditional marriage."

Ironically, however, the logical consequence of the Kansas Supreme Court's ruling does anything but preserve "traditional marriage." The clear implication of this ruling is that J'Noel would be free under Kansas law to marry a woman.

Indeed, similar relationships have been the practical result in other states with a ruling like this one on the books--with male-to-female transsexuals carrying on lesbian relationships with women, under the sanctity of civil marriage.

Bizarrely, then, under Kansas law and the laws of the other states that have reached similar conclusions, a lesbian relationship that involves a man-to-woman transsexual is deemed more "traditional" than a lesbian relationship between two lesbian women.

A Victory for Traditional Marriage?

Which outcome - the one J'Noel argued for, or the one Joe argued for - truly "upholds traditional marriage?" The one that sanctioned marriage between a man and an individual who is psychologically, anatomically, hormonally, and in all other decipherable respects a woman? Or the one that sanctioned marriage between two individuals, both of whom are anatomically female?

The average American who does not have $1.25 million dollars at stake would almost certainly be less offended by the former outcome. In reality, neither marriage can be fairly defined as "traditional" - since neither permits conventional forms of reproduction. And yet both should be recognized.

The kinds of family forms and structures continue to multiply, and the need for legal recognition follows each. Inheritance rights, like those at stake in the Gardiner case, are just one of the rights that non-traditional couples desire when they attempt to have their marriages legally recognized.

One irony of this ruling is that it licenses a form of same-sex marriage for a group that doesn't want them, while withholding it from groups that do. Most male-to-female transsexuals are not homosexual, and, given the choice, would enter intimate relationships with men. Yet they are only allowed to marry women. And many lesbian women would like to marry other women, but are told by courts and legislatures nationwide that they must marry men if they marry at all.

Why Transsexuals Must Constitutionally Be Allowed To Marry Someone

What if the Court had suggested that J'Noel could not marry Marshall because both were born male, but also could not marry a woman because both would be anatomically female? Wouldn't that be, from Kansas's perspective, the easiest answer, since it would rule out both types of non-traditional marriages - and indeed, would deem any marriage involving a transsexual nontraditional? From Kansas's perspective, perhaps.

But such a ruling would be constitutionally suspect. A statute that, as interpreted by the relevant state court, prevents an entire class of persons from marrying anyone of either sex would be subject to serious constitutional challenge.

There is significant protection in the Constitution for the right of marriage, stemming from the Due Process Clause of the Fourteenth Amendment and the "substantive due process" doctrine, which I discussed in an earlier column on the right of prisoners to procreate. The right to marriage is one of a panoply of privacy rights protected by the Constitution - including the right to bear and beget children, the right to use contraception, and the right of access to abortion without undue burden.

The right to marry has been construed to permit states to impose reasonable procedural regulations on how marriage is obtained (e.g., requiring a blood test or marriage license), but not to significantly interfere with the ability to marry. Thus, the Supreme Court struck down a Wisconsin statute in Zablocki v. Redhail that made it difficult if not impossible for a deadbeat dad to remarry without first paying up all back-owed child support.

Yet outside of the race context, most courts have upheld statutes limiting the class of persons one can marry. Thus incest statutes, which prevent one from marrying close relatives, and general marriage statutes, which prevent women from marrying women and men from marrying men, have withstood most scrutiny. But they survive because while they remove a class of potential marriage partners from the ring, they leave some there.

In short, limiting the class of persons one can marry is very different, in the Court's eyes, from telling a class of persons they can never marry at all. (Of course, this may in some cases be a false distinction; if one is a homosexual man or lesbian, the right to a heterosexual marriage only can be tantamount to a complete bar on marriage to anyone.)

Thus, pursuant to the Supreme Court's rulings, it may be that the state legislature can tell transsexuals whom they can marry - by defining their sex as either male or female, and letting them marry the opposite sex. But it may also be that under the Court's rulings, the state legislature cannot effectively forbid transsexuals from marrying at all.

A Controversial Case, But An Unfortunately Predictable Outcome

The Gardiner case has garnered significant media attention because it purports to resolve such grand questions as the meaning of sex and gender. But, in the end, it is predictable in its outcome and reasoning.

"Once a man, always a man," is the court's mantra. It comes from the judges' gut instincts rather than any complicated legal analysis. But its logical consequences, as described above, probably defy those same instincts. It is unlikely that the same judges who instinctually believe a man is always a man, also instinctually believe that a male-to-female transsexual's marriage to a woman is a traditional marriage. Yet that is, nonetheless, what they ruled.

One can only hope that perhaps the court, in its transparent effort to preserve "tradition," has unwittingly opened the door to same-sex marriage generally. Kansas soon will be forced to welcome what are in effect lesbian unions, as long as one of the partners is biologically male; perhaps the state will learn to accept them.

If so, it will be ironic, for same-sex marriage is an idea that poses a much more significant challenge to the tradition the court seeks to protect than the rare and apparently heterosexual marriage between a male-to-female transsexual and a man ever has.

The Kansas Supreme Court will not have the last word. J'Noel's lawyer has said they may seek review by the United States Supreme Court. Meanwhile, a Florida court is poised to rule on this precise issue under Florida law in the near future, and other states will eventually no doubt resolve the same issue for themselves. The law of transsexual marriage, and of the mutability of one's sex, is just beginning to develop.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University, where she teaches Wills, Trusts and Estates and Sex Discrimination, among other subjects.

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