Topeka An attorney for a transsexual told the state's highest court Tuesday that if it doesn't declare her marriage valid, it will create the impression it supports same-sex unions.
The Supreme Court is reviewing a dispute over the $2.5 million estate of Marshall Gardiner, a Leavenworth stockbroker and former newspaper reporter who died in 1999 without a will.
The outcome will determine whether his widow, J'Noel Gardiner, and his son, Joe Gardiner, will split the estate, or whether Joe Gardiner will claim it all.
Normally, the estate would be split evenly under Kansas law. But J'Noel Gardiner was a born a man and had sexual reassignment surgeries in 1994 and 1995. She married Marshall Gardiner in 1998, when she was 40 and Gardiner was 85.
Kansas has long refused to recognize same-sex marriages, and legislators enacted a 1996 law to reiterate that point. However, the law doesn't mention transsexuals.
J'Noel Gardiner's attorney, Sanford Krigel, of Kansas City, Mo., told the justices that the U.S. Supreme Court has ruled that adults have a right to marry. Concluding that J'Noel Gardiner remains a man despite her surgeries and declaring her marriage to Marshall Gardiner invalid would leave her the right to marry only women, he said.
"You're creating a situation where you would essentially be approving what would appear to be a homosexual marriage," Krigel said. "There's all kind of potential pitfalls."
Attorneys for Joe Gardiner said the definition of marriage included in Kansas law is a traditional one that doesn't include transsexuals. Attorney Bill Modrcin, of Kansas City, Mo., said the court should let the Legislature decide whether a marriage involving a transsexual is legal.
Joe Gardiner said: "The traditional meaning of marriage is what has kept the human race alive, isn't it?"
Joe Gardiner attended Tuesday's arguments. J'Noel Gardiner, who has declined to talk to reporters, did not.
The case has received national attention, and groups on both sides filed legal briefs with the Supreme Court.
Though he acknowledged, "we may be 10 to 15 years ahead of our time," Krigel suggested that a ruling in J'Noel Gardiner's case would apply only to people who have undergone sexual reassignment surgery.
However, Modrcin said such a ruling would raise new issues about how the state determines gender before allowing a marriage.
"If two females show up and one says, 'I'm feeling particularly masculine today,' does the court grant them a license?" he said.
A Leavenworth County district judge declared that despite her surgery, J'Noel Gardiner remained a man and the marriage was invalid, a ruling in keeping with a Texas decision that the U.S. Supreme Court let stand last year.
But in May, the Kansas Court of Appeals ruled in J'Noel Gardiner's favor, saying that her sex at the time of marriage was the crucial issue. Advocacy groups for the transgendered praised the decision as a landmark. Joe Gardiner appealed the case to the Supreme Court.