Transsexual's Marriage Upheld

Reversed: Court of Appeals Overturns District Court Ruling Invalidating Marriage

A marriage involving a person who had sexual reassignment surgery may be valid under Kansas law, the state Court of Appeals ruled Friday.

The court overturned a Leavenworth County District Court ruling that declared the September 1998 marriage of Marshall and J'Noel Gardiner invalid because she once was a man. District Judge Gunnar Sundby had ruled that J'Noel Gardiner remained a man, despite the surgery.

"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," Appeals Judge Robert Gernon wrote for the panel.

State law bans same-sex marriages, but it doesn't address the question of whether transsexuals' unions are legal. The ruling was the first time an appeals court in Kansas had considered the issue.

The case was being watched nationally by gay and transgender rights groups and attorneys.

Shannon Minter, senior attorney for the National Center for Lesbian Rights in San Francisco, called the ruling "fantastic" and described it as precedent-setting because of the lack of similar rulings across the nation.

"This case will be hugely influential all over the country," Minter said. "This case is going to be pointed to as a turning point in state courts."

Marshall Gardiner, who was 85 at the time of the marriage, died in 1999 of a heart attack, leaving a $2.5 million estate. J'Noel Gardiner is embroiled in a legal dispute over the estate with her husband's son, Joe Gardiner. The son learned about her surgery after his father's death.

A unanimous three-judge panel of the Court of Appeals said that, in determining whether a marriage is valid, a district court must look at more than whether a person was born male or female. Instead, it must determine whether a person is male or female at the time of the marriage.

The panel concluded that such a determination can be complicated in some cases. It cited medical literature dealing with gender identity, conditions in which a person's gender is unclear and sexual reassignment surgery. The appellate judges listed seven factors for district courts to review.

"The same science which allows us to map the genome and explore our DNA requires us to recognize these discoveries in all aspects of our lives, including the legal ramifications," Gernon wrote.

It ordered the case returned to district court for more proceedings. Its ruling can be appealed to the state Supreme Court or the full 10-member Court of Appeals.

The ruling runs counter to one by the Texas Court of Appeals in 1999, when it considered the case of a transsexual woman 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.

But in its ruling Friday, the Kansas court declared the Texas decision "a rigid and simplistic approach to issues that are far more complex than addressed in that opinion."

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