Kansas Widow Can Argue That Earlier Sex Change Does Not Invalidate Her Marriage

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Court of Appeals recognizes that legal gender can be changed after birth
May 11, 2001

(NEW YORK, May 11, 2001) — The Kansas Court of Appeals has ruled that courts must consider a wide range of factors, and not focus solely on sex at birth when judging the legal gender of a person who has had a sex change operation. The ruling came Friday as the court considered the validity of the marriage of J’Noel Gardiner, a transgender woman, to her husband, Marshall Gardiner, now deceased.

The ruling reverses a trial court decision that said Gardiner’s marriage was invalid because she was born a man. The appeals court gave a detailed review of the scientific literature about transgender biology and psychology and rejected what it called “a rigid and simplistic approach” to defining transgender people. Lambda Legal Defense and Education Fund authored a key amicus brief in the case that the court specifically cited as helpful.

Said Lambda Staff Attorney Jennifer Middleton, “This decision recognizes what transgender people have known for a long time – that some people’s sex is not determined by their anatomy at birth. It is very encouraging to see this court focus 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.”

In its amicus brief, written by former Staff Attorney Doni Gewertzman, Lambda urged reversal of a Kansas trial court’s illogical and inhumane definition of legal sex.

Though a woman for many years and joined in a legal marriage to a man, Gardiner’s marriage was, in essence, voided after the fact, when her husband died and her husband’s estranged son successfully challenged the marriage in a dispute over the estate. The trial court ruled that Gardiner’s prior sex change would not be recognized, ruling that Gardiner’s marriage with Marshall Gardiner was invalid because she was born a male and marriages between people of the same sex are not legal in Kansas.

The Kansas appeals court reversed that decision. Recognizing the “diverse composition of today’s families,” the court noted that biology is “no longer the sole organizing principle” of American family life.

The case now is remanded to the trial court with instructions to consider carefully the scientific research and J’Noel’s sexual identity to determine the validity of her marriage.

Lambda’s amicus brief was filed on behalf of the Gender Public Advocacy Coalition and the American Civil Liberties Union of Kansas and Western Missouri to provide the appeals court with a detailed discussion of the range of factors it should consider in determining legal sex. Lambda’s arguments unequivocally support the conclusion that Gardiner’s sex during her marriage and today is female.

Gewirtzman was assisted by Pamela Sumners of the ACLU of Illinois, with Lisa Nathanson of the ACLU of Kansas and Western Missouri serving as local counsel. Lambda is the oldest and largest legal organization dedicated to the civil rights of lesbians, gay men, and people with HIV and AIDS. Lambda’s headquarters are in New York and regional offices in Los Angeles, Chicago, and Atlanta. Lambda will open an office in Dallas in 2002.


(In the Matter of the Estate of Marshall G. Gardiner, No. 85,030 

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