Topeka ? A transsexual whose marriage was ruled invalid by the state’s highest court will ask the U.S. Supreme Court to compel Kansas to recognize her as a woman, her lawyer said.

The Kansas Supreme Court ruled last month that J’Noel Gardiner is still a man under state law.

But Gardiner’s amended Wisconsin birth certificate lists her as female, her attorney said, so the U.S. Constitution requires Kansas to consider her female from birth and to grant her a share of her late husband’s estate.

Attorney Sanford Krigel is basing his appeal on Article IV of the Constitution, which guarantees that public acts and records valid in one state are valid in every state.

“At one time, some states didn’t recognize divorces from other states, and the Supreme Court intervened,” Krigel said Wednesday. “We think it’s precisely the same issue. Once Wisconsin declared Mrs. Gardiner a woman, she should be considered a woman in the other 49 states.”

A formal request for hearing, he said, would be filed with the U.S. Supreme Court within the next six weeks.

A court ordered Gardiner’s birth certificate amended in 1994.

The issue of Gardiner’s gender was raised by her stepson, Joe Gardiner, who challenged his stepmother’s claim to half of his father’s $2.5 million estate. J’Noel Gardiner’s husband, Marshall Gardiner of Leavenworth, left no will when he died in 1999.

J’Noel Gardiner, 44, now lives in the Kansas City suburb of Weatherby Lake, Mo. She is a finance professor at Park University in Parkville, Mo.

Kansas has no provision for amending birth certificates for transsexuals, but about 20 other states, including Missouri, do allow it.

In making its unanimous ruling last month, the Kansas Supreme Court relied upon definitions of “male” and “female” found in a 1970 Webster’s dictionary. The definitions hinge on men’s and women’s ability to reproduce.

The justices said that Kansas statutes only recognize marriages between males and females.

“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,” wrote Justice Donald Allegrucci. “However, the validity of J’Noel’s marriage to Marshall is a question of public policy to be addressed by the Legislature and not by this court.”