KS Supreme Court to Decide What Determines Sex

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, has 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. Kansas does not recognize same-sex marriage. The Kansas Supreme Court is expected to rule on the case at the end of this month.

At issue is how the Court will determine sex. In February 2000, a District Court ruled that sex was determined by genetics at birth and could not be changed, but later that year the ruling was overturned. An appellate panel, using research stating that between 275,000 to 2.5 million people in the U.S. were born with genetics that made them neither unambiguously male nor female, then determined that sex was based on a combination of psychological and physiological factors.

In 1999, a Texas court nullified a similar marriage to a transsexual on the basis of genetics. Since then, at least two male-to-female transsexuals have married women in Texas, technically not a “same-sex” marriage.


New York Times, 1/13/02

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