The Kansas Supreme Court last week rejected J’Noel Gardiner’s claim to her late husband’s estate, citing that because J’Noel is transsexual, her marriage to Marshall Gardiner could not be legally recognized. The Court noted that Kansas state law defines marriage as a union between a biological man and a biological woman. The Court then determined that “a male-to-female post-operative transsexual does not fit the definition of a female.” According to the Court, in Kansas state law, “the words Ôsex,’ Ômarriage,’ Ômale,’ and Ôfemale’Édo not encompass transsexuals.” The Court, however, expressed some sympathy for J’Noel, saying “We are not blind to the stress and pain experienced by one who is born a male but perceives oneself as a 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.” The Court, however, left the question of transsexual marriage to the legislature.
Marshall Gardiner of Kansas died of heart failure in August 1999 without a will, leaving the state to split his $2.5 million estate between his wife, J’Noel, and son, Joe. Joe Gardiner, however, challenged his stepmother’s right to her portion of the estate claiming that J’Noel and his father did not have a legal marriage because J’Noel, a transsexual, had been born a man. J’Noel had had her birth certificate legally changed in Wisconsin to show that she was now a woman. Kansas would not recognize the change.
Commenting on the case, Jennifer Middleton, a lawyer with Lambda Legal Defense and Education Fund, said that Kansas was “sticking its head in the sand.” Between 275,000 and 2.5 million people in the U.S. have genetics that made them neither unambiguously biologically male nor female. Genetics aside, Middleton notes, “The right to marry doesn’t mean much if it’s not the right to marry the person you love.”