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Archive for Saturday, March 16, 2002

of widow, gay advocates say

March 16, 2002

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— A marriage between a man and a transsexual woman is not valid in Kansas, the state Supreme Court declared Friday.

The justices said that J'Noel Gardiner, a finance instructor at Park University in Parkville, Mo., remained a man, despite operations in 1994 and 1995 to become female. Their ruling was unanimous.

The case involved the $2.5 million estate of her late husband, Marshall Gardiner, whom she married in September 1998 in Oskaloosa, when she was 40 and he was 85. They lived in Leavenworth County, but he died the next year of a heart attack without leaving a will.

Under Kansas law, a widow inherits half of her late spouse's estate if no will exists. But Marshall Gardiner's son, Joe Gardiner, a Web page designer in Leavenworth, learned about J'Noel Gardiner's operations after his father's death and challenged the validity of the marriage.

Under the Supreme Court's ruling, he stands to inherit the entire estate.

Court can't 'rewrite' law

Same-sex marriages are invalid in Kansas, but state law does not address the question of whether marriages involving transsexuals are invalid. The court said the Legislature has decided that only "traditional" marriages are valid.

Writing for the court, Justice Donald Allegrucci said the court had a responsibility to interpret the law, "not to rewrite it."

Furthermore, Allegrucci wrote, if marriages involving men and male-to-female transsexuals are to be valid, "That is for the Legislature to do if it so desires."

J'Noel Gardiner did not return a call left at her office by The Associated Press, and her attorney, Sanford Krigel, of Kansas City, Mo., said J'Noel Gardiner was not granting interviews.

Krigel said J'Noel Gardiner was disappointed and Krigel called the court's decision "a step in the wrong direction."

'Thoroughly outdated'

In New York, Jennifer Middleton, staff attorney for the Lambda Legal Defense and Education Fund, a gay and transgendered rights group, called the Kansas court's ruling "thoroughly outdated." Her group filed a friend-of-the-court brief on behalf of J'Noel Gardiner.

"It strikes me as the Supreme Court trying to bury its head in the sand and ignore the reality of 21st Century science and medicine," she said. "More importantly, it ignores the reality of J'Noel's life."

But Joe Gardiner praised the decision, telling reporters, "I'm sorry it had to come to this, but I think it worked out like Marshall would have wanted."

Joe Gardiner contends his father didn't know about J'Noel Gardiner's past life until after he married her. J'Noel Gardiner has said Marshall Gardiner knew.

John Thompson, an attorney for Joe Gardiner, said the administration of the estate could be finished within six months. He did not know how much would be left after expenses.

Bill Modrcin, a Kansas City, Mo., another attorney representing Joe Gardiner, said the Supreme Court simply followed legal precedents. He said had the court ruled in J'Noel Gardiner's favor, "It would have been a quantum leap."

"Quite frankly, I don't think it closes the door on transsexuals," he said. "It just laterals the issue to the Legislature."

House Judiciary Committee Chairman Mike O'Neal said he doubts legislators want to touch the issue. He said he was disappointed by the court's ruling.

"As old as our laws are, do we have to anticipate everything in order for common sense to prevail?" said O'Neal, R-Hutchinson.

Krigel said J'Noel Gardiner is considering whether to ask the U.S. Supreme Court to hear the case.

But both Modrcin and Middleton said they don't think the nation's highest court would hear the case. They said they see no issues involving federal law or the U.S. Constitution.

The Supreme Court did not answer the question of whether J'Noel Gardiner could legally marry a woman, although Krigel has said she would have no desire to do so.

A complicated history

J'Noel and Marshall Gardiner met at Park University in May 1998. Marshall Gardiner, a former state representative, was a stock broker and large donor to the college.

The case has been closely watched by advocacy groups for transsexuals and other transgendered individuals. The Kansas high court's ruling is in line with a Texas ruling that the U.S. Supreme Court let stand in 2000.

In the Texas case, that state's Court of Appeals reviewed the case of a transsexual who wanted to sue for the wrongful death of her husband. The Texas court declared her female anatomy "man-made," and said it was up to the Legislature to legalize marriages involving transsexuals.

The U.S. Supreme Court declined to hear that case last year, in effect letting the Texas ruling stand.

A Leavenworth County district judge declared that despite her operation, J'Noel Gardiner remained a man and the marriage was invalid.

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 praised that decision as a landmark.

In its decision Friday, the Kansas Court said that J'Noel Gardiner had a male body "in all aspects other than what the physicians have supplied."

For a male-to-female transsexual, "There is no womb, cervix or ovaries, nor is there any change in his chromosomes," Allegrucci wrote for the court.

 The case is No. 85,030, In the Matter of the Estate of Marshall G. Gardiner.

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