Topeka The Kansas Supreme Court will soon decide whether J'Noel Gardiner is a widow, or a man.
The court has agreed to hear a case that claims Gardiner's 1994 sex-change operation invalidates her marriage and her right to her deceased husband's estate.
When she met Marshall Gardiner in 1998, she was 40, and he was 85 and a wealthy Leavenworth stockbroker and former state representative.
He died without a will in 1999. Usually, the state would divide his $2.5 million estate between his widow and his children.
But Marshall Gardiner's son from a previous marriage, Joe Gardiner, wants it all. His lawsuit claims that J'Noel Gardiner is still a man under Kansas law, and thus her marriage to Marshall Gardiner was null and void.
A judge agreed in January 2000, writing that J'Noel Gardiner "was born a male and remains a male for purposes of marriage under Kansas law."
In May, a three-judge panel of the Kansas Court of Appeals reopened the issue of the validity of the marriage, saying: "We can no longer be permitted to conclude who is male or who is female by the amount of facial hair one has or the size of one's feet."
The appellate court ruled that J'Noel Gardiner, an assistant professor of finance at Park University in Parkville, was entitled to a court hearing on whether she should receive part of the estate.
When the state Supreme Court agreed to hear the case on Sept. 26, it did not say why. The court has not set a hearing date.
Both sides agree that J'Noel Gardiner had long suffered from gender identity disorder, believing from before puberty that she was female, even though she had male genitalia. After undergoing sex reassignment surgery which involved converting the external male genitalia into female genitalia she sought and was granted a court order in Wisconsin directing that her birth certificate be amended to state that she is female.
In its May ruling the appellate court sent the case back to Leavenworth County District Court with a set of guidelines for determining the gender of J'Noel Gardiner at the time of the marriage.
"A trial court must consider and decide whether an individual was a male or female at the time the individual's marriage license was issued and the individual was married, not simply what the individual's chromosomes were or were not at the moment of birth," the appeals court decision said.
The appeals court ruling listed eight specific factors for the district court to consider when deciding a person's sex. Besides chromosome makeup, the appellate court directed the lower court to consider gender rearing, sexual identity and sexual reassignment surgery, among other factors.