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Tuesday, Jun. 05, 2001

It came as no surprise when 85 year-old Marshall Gardiner, a multi-millionaire, selected a younger woman to marry, the 40-ish J'Noel Ball. It was also no surprise that when Gardiner died without a will a year later, his adult son, Joe, began looking for ways to prevent J'Noel from inheriting a share of his father's estate.

The surprise came when Joe Gardiner discovered that J'Noel was a post-operative transsexual who used to be a man. Unsurprisingly, this discovery prompted Joe to go to court — to claim that his father's marriage was an illegal same-sex union, and that J'Noel should not inherit any part of the estate.

Under Kansas law, if the marriage is valid, Gardiner Senior's $2.5 million estate would be split between his wife, J'Noel, and his son, Joe. But if the marriage is invalid, Joe will get everything. Thus, for Joe, $1.25 million — a bit more than the grand prize on Survivor — is at stake.

The Facts and Arguments

To fully understand the case, a bit of background is in order. Afflicted with gender dysphoria disorder, J'Noel had sex reassignment surgery in 1994 to align her anatomical gender (male) with her self-identified gender (female).

She then changed her name from Jay to J'Noel. She also had her birth certificate reissued in Wisconsin, where she lived at the time, to reflect her reassigned sex. (About 20 states permit transsexuals to obtain new birth certificates after undergoing sex reassignment surgery.)

After discovering J'Noel is a transsexual, Joe Gardiner challenged the validity of his father's marriage on two bases. First, he claimed fraud, alleging that his father did not know J'Noel was born a man. But even if that were true, which J'Noel denies, courts generally do not permit marriages to be annulled by third parties, especially after the marriage has been legally terminated by death.

The Trial Court's Decision

Last summer, a trial court in Kansas agreed with Joe Gardiner that J'Noel, having been born a male, is a male for purposes of Kansas marriage and estate law. Accordingly, the court held the marriage between J'Noel and Marshall invalid because it violated the state's prohibition on same-sex marriage. And it ruled that J'Noel was not entitled to collect a spousal share of Marshall Gardiner's estate; Joe got it all.

The import of this decision is that, under Kansas law, a male-to-female transsexual, although anatomically and psychologically female, is legally male. In reaching this conclusion, the Gardiner trial court relied heavily on a recent Texas appellate case, Littleton v. Prange, which refused to recognize a male-to-female transsexual who tried to bring a wrongful death claim as the deceased man's surviving spouse.

A Reversal on Appeal

On appeal in the Gardiner case, however, the Kansas court of appeals issued a decision overruling the trial court's decision.

The court of appeals did not hold that J'Noel was legally female, and therefore validly married to Marshall. But it did hold that the fact that J'Noel had been born male did not, by itself, mean she was legally male all her life.

Instead, the appeals court held, the trial court had to consider a number of factors in determining whether J'Noel was male or female at the time the marriage license was issued — the relevant point in time for determining the validity of her and Marshall's marriage.

Chromosomes at birth, the court held, are only one factor in determining an individual's sex later in life. Seven additional criteria matter too: gonadal sex (testes or ovaries), internal morphologic sex (prostate or uterus), external morphologic sex (genitalia), hormonal sex (androgens or estrogens), phenotypic sex (secondary sexual features like chest hair), assigned sex and gender of rearing, and sexual identity.

The trial court has not yet ruled whether J'Noel, under these criteria, was male or female at the time of the marriage. Given her sex-change operation, several factors — reflecting changes resulting from the operation and her therapeutic use of estrogen — should cut in her favor. But several factors will also cut against her, despite the fact that they are out of her control (for example, that she was born and reared a boy).

The Gardiner case's rulings form part of an emerging law of transsexualism — one that, regrettably, is not terribly favorable to transsexuals.

For example, transsexuals have generally been unsuccessful in establishing rights under federal anti-discrimination laws. Most courts have held that Title VII, for example, does not prohibit employers from discriminating on the basis of transsexualism. A few states, however, do have laws protecting transsexuals against discrimination.

The law has also focused on the issues touched on in the Gardiner case: whether transsexuals should be entitled to re-issued birth certificates reflecting their self-identified or post-operative gender, and whom transsexuals should be able to marry.

Both these issues come down to a hard question: is sex something that can be changed? Without express legislative authority, courts have been reluctant to say yes.

Many states simply answer this question no. They require post-operative transsexuals to retain birth certificates reflecting their sex at birth. In those states, a male-to-female transsexual cannot legally marry a man. And one suspects that such a transsexual would also encounter objections to marrying a woman, since by all outward appearances she would be one herself. There are, however, reports in some of those states that male-to-female transsexuals have successfully obtained licenses to marry women.

In states that permit birth certificates to be reissued, transsexuals have been permitted to marry individuals who share their birth sex.

As noted above, the Kansas appeals court, in Gardiner, refused to answer with a flat no. Nevertheless, it did little better than punt on the issue. Its creation of a list of criteria — some social, some biological — left the balance a subjective one, to be assessed by the trial court. Thus, that court will find it easy to rule against J'Noel again if it so chooses.

But the Kansas court of appeals was, at least, right to recognize the possibility that an individual's sex can be changed, though perhaps foolish to think judges are qualified to make that kind of determination.

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. Grossman has frequently written for FindLaw on trusts and estates issues, gay marriage and adoption, and sex discrimination. Her articles on these topics can be found in the archive of her pieces on the site.

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