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Kansas City Star, March 3, 2002
( http://www.kcstar.com/ )
Kansas case adds to debate on transsexual rights, same-sex marriages
By STACY DOWNS
As questions go, those surrounding the probate case "In the Matter of The Estate of Marshall G. Gardiner" are, in a word, exotic.
Can a woman who was once a man marry another man?
Can she inherit half of his estate?
Can she be a woman in Wisconsin and a man in Kansas?
Should same-sex marriages be legal?
And if so, what would be the impact on society?
On Friday the Kansas Supreme Court is expected to rule on the Gardiner case. While it deliberates, denizens of the political and cultural left and right circle and watch.
The case involves the survivors of Leavenworth millionaire Marshall Gardiner. One is J'Noel Gardiner, 44, who, after years of surgeries and hormone therapy, changed her sex to female. After a brief courtship, she married Gardiner, who, 11 months later, died without a will. Now his widow wants half of the $2.5 million estate.
Standing in the way, however, is her 54-year-old stepson, Joe Gardiner. He contends he should have the entire estate because, under Kansas law, J'Noel is a man and same-sex marriages are illegal.
This week the Supreme Court will decide the narrow legal issue - that is, if J'Noel Gardiner is a man under Kansas law.
But its decision may have a profound impact on the national debate about same-sex marriages and the rights of transsexuals.
Changing gender
In 1994, Jay Noel Ball had sex-change surgery. Later a Wisconsin court granted an order amending her birth certificate. She has a doctorate from the University of Georgia and also changed her name and gender on college degrees and transcripts.
Both sides in the case agree she had gender identity disorder, even before puberty. But they disagree whether she is a man or a woman now.
In 2000, a county district court judge ruled in favor of Joe Gardiner, saying his stepmother was born a male.
Last year, a three-judge panel of the Kansas Court of Appeals reopened the issue. "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 court wrote.
The ruling sent the decision back to the district court with a new set of guidelines to determine J'Noel Gardiner's gender at the time of the marriage. Joe Gardiner appealed that decision to the Kansas Supreme Court.
The legal scrutiny and media zoo that followed have been "degrading and terrifying," J'Noel Gardiner said Friday, and she said she shouldn't have to defend her womanhood or her marriage to the man she loved.
"This would devastate him, that the state and the country that he served are doing this to his widow," she said.
Marshall Gardiner had been a Kansas representative, a newspaper reporter for The Leavenworth Times and a stockbroker. He fought in World War II and had served as executor to several wills, including a $10 million estate. Oddly, he left no will of his own.
Without a will, Kansas law says, the heir gets half and the widow gets half.
When Joe Gardiner - Marshall Gardiner's only child - found out his stepmother once lived as a man, he went to probate court and challenged her claim to half of the estate.
"I thought it was an open-and-shut case," Joe Gardiner said. "But it's become so political and so emotional. Strip that away and it's a common-sense decision."
People are born with an unalterable gender, said Joe Gardiner's lawyer, Bill Modrcin. It's the DNA that counts. Any other definition of gender throws out the traditional values of marriage.
"So could two men go in to get a marriage license and one say, 'I'm feeling particularly feminine today'? I would hate to be the poor clerk at the license bureau dealing with that," Modrcin said. "And if gender is open for interpretation, what limitations do you put on it surgically?"
On the other hand, Sanford Krigel, J'Noel Gardiner's lawyer, says gender is interpreted differently state to state. Krigel asks: How can Gardiner be a woman in Wisconsin and a man in Kansas?
"If she married a man in Wisconsin and came back to Kansas, would they be committing sodomy?" Krigel said. "If she legally adopts a child in Wisconsin, would it be considered kidnapping here?"
One of the Supreme Court's tasks in the case is to review an eight-part test to determine gender. The appellate court accepted the test, which was developed by Julie Greenberg, a law professor at Thomas Jefferson Law School in San Diego. Among other things, Greenberg's criteria requires consideration of chromosomes, genitalia, hormones, sexual assignment and sexual identity.
"Gender is not as easy to define as people think, and it has an effect on more people than one would think," Greenberg said.
Lawyers from the Lambda Legal Defense and Education Fund say it's encouraging that Greenberg's guidelines are considered.
"They're focusing on medical knowledge and the reality of people's lives rather than old-fashioned, narrow notions of what it is to be a man or a woman," said Jennifer Middleton, a Lambda attorney.
Medical experts say one of every 1,000 to 2,000 people in the United States are born with a mix of chromosomes, genitalia and hormones that makes them neither clearly male or female. That affects up to 2.5 million people, Greenberg said, plus those they want to marry.
About 1,000 adults a year undergo sex reassignment surgeries in the United States, according to the International Foundation for Gender Education. Costs range from $12,000 to $20,000 or more. And there are more than 25,000 people in the country who have had the surgery.
The foundation's position is that the government should be out of the gender business.
"Someday, gender is going to be voluntary rather than mandatory," said Denise Leclair, the foundation's general manager. "When you look at it, it's like having separate bathrooms for whites and blacks when the government decides who you can and can't marry."
And in this country, who can marry whom has a long and varied history.
Institution of marriage
Since the beginning of the republic, the American government has had a hand in marriage, said Nancy Cott, a Harvard history professor.
Early in the nation's history, a married white woman had no rights. The ancestral home, the family mule, money from a job all became her husband's. But between the 1830s and 1870s, states began passing property laws that let women keep what was theirs if they divorced.
It wasn't until 1866 that black people in America could marry at all. And it wasn't until 101 years later that a black person could marry a white person in all 50 states.
The same arguments then, Cott writes in her book Public Vows: A History of Marriage and the Nation, are the same ones that pop up now against same-sex marriage.
"Marriage is a cultural and social issue much more than a legal one," Cott said. "It always has been. It always will be."
Marshall Gardiner and J'Noel Ball married in September 1998. Kansas Supreme Court Justice Robert E. Davis, a friend of Gardiner's, performed the ceremony in Oskaloosa, Kan. (Davis, still on the bench, has recused himself from the case.) The couple, their friends said, shared a love for travel and a keen sense of humor.
"They were happy with each other and seemed to reinforce the best in each other," said Terry Snapp, former vice president of university advancement at Park University. "Through her, he was rediscovering Park."
Marshall Gardiner's first wife, Molly, died in 1984. Both were Park graduates. Ball began teaching finance at the university in 1997, and a year later she met Gardiner at a Park banquet.
Gardiner, 85, was short and stocky and dressed alternately dumpy or dapper. Ball, 40, was tall, slender and a classy dresser. They hit it off instantly and became engaged. One night before a game of Scrabble, she told him she once was a man. She said he shrugged, "looked into my eyes and told me he loved me."
"My time with him was the happiest of my life."
But his son said it's difficult to fathom that his father, a man with traditional values, would marry a transsexual.
Men can't marry men, Joe Gardiner said, and his father was no exception.
Same-sex marriage
Some claim that recognizing same-sex unions would destroy the institution of marriage. Others say nonsense. Others aren't so sure.
National conservative groups think if the Gardiners' marriage is valid, what's to prevent same-sex marriage?
"If transsexuals can marry, then there is no reason to prevent a homosexual from marrying another homosexual in Kansas or to prevent a lesbian from validly marrying another lesbian," said Edward White, associate counsel for the Thomas More Center for Law and Justice. "It would be a step toward the destruction of marriage."
The center filed a brief on behalf of Joe Gardiner because, White said, marriage is the core of society, built around traditional family activities. Because men and women unite to have children, he contends, society grows and prospers.
The same-sex marriage debate reaches from Hawaii to Vermont. In 1993, the Hawaii Supreme Court ruled marriage a partnership status, opening the possibility for same-sex marriage. Three years later, in a referendum, Hawaii voters trumped the court and defined marriage as the union of man and woman.
In 1996, Congress passed the Defense of Marriage Act, defining marriage as a union between a man and a woman. No state, it said, needs to recognize a same-sex marriage performed in another state. President Bill Clinton signed it.
By 2000, all but 15 states had passed laws that do not recognize same-sex marriage. Also that year, Vermont began recognizing "civil unions." The state gave same-sex couples benefits of marriage - claims to estate and medical privileges - but reserved marriage to a man and a woman.
What makes the issue different from women's and African-Americans' marital rights, historians say, is that this kind of partnership is not included in the Bible.
"People with an alternative lifestyle deserve our respect, but we won't encourage their lifestyle," said Gary Kendall, pastor of Indian Creek Community Church of Olathe. "We teach people to appreciate and value the gender they are born with. We wouldn't encourage people toward a sex change and would not encourage this kind of marriage."
But the institution of marriage isn't threatened by homosexuals or transsexuals, said Ann Cudd, director of the University of Kansas women's studies program and a philosophy professor. They already bear children or adopt them and raise them. They already live in every other way as if they were married but without the privilege of uniting in name.
"The institution of marriage tries to normalize to heterosexual lines between a male and female," Cudd said, "something that minds and bodies don't always fit neatly into."
Kansas City psychologist Michelle Kelley said marriage provides stability for children. It's character, not gender, that should decide who marries whom.
Jay McKell, pastor of Grace Covenant Presbyterian Church in Overland Park, sees same-sex couples who want to marry. But "the legal system of both churches and the government prevent some from attaining that sacredness that marriage provides," McKell said. "It's a real Catch-22."
Awaiting the ruling
So what will happen after the Kansas Supreme Court's decision?
Greenberg, the law professor who created the gender definitions, said Kansas can make history if J'Noel Gardiner is considered a woman. It would be a standard for other states when they deal with these issues.
But what if the court says Gardiner is a man?
A Texas court in 1999 invalidated a marriage similar to the Gardiners' when it said a male-turned-female transsexual wasn't a woman. Since then, several male-to-female transsexuals in Texas married women.
"I like to joke that Texas beat Vermont in recognizing same-sex unions," Greenberg said.
And if Kansas goes the way of Texas, Greenberg said, there will be a test case in another state.
Joe Gardiner and his wife plan to pursue the issue. They think it will stay in the courts for a long time. If it isn't decided in his favor, he plans to fight the case with a waiver that he believes relinquishes J'Noel Gardiner's claim to any of his father's estate.
J'Noel Gardiner is still a professor at Park. She remains private about the case and its issues, shunning television and radio requests for interviews.
"I'm defending my husband, my marriage and my human rights," she said. "I'm also doing this for the thousands of families like mine."
The university guards her privacy, Snapp said, and doesn't discuss her marriage to Marshall Gardiner.
"The tragedy is that they never got around to writing a will," Snapp said. "If they had, the things that are issues probably wouldn't be issues."
[This message has been edited by Shadowcat (edited March 11, 2002).]
