Kansas Supreme Court Ignores Scientific Evidence on Sex Change

(NEW YORK, Friday, March 15, 2002) - The Kansas Supreme Court’s ruling against the marriage of J’Noel Gardiner, a transsexual woman, fails to acknowledge scientific and psychological realities - as well as the everyday reality of J’Noel’s life and marriage as a female.

“The Court relied on a 1970 edition of Webster’s dictionary instead of contemporary medical evidence to conclude that J’Noel Gardiner is not female and left her in a legal void. To this court, J’Noel’s marriage never existed,” said Lambda Legal Staff Attorney Jennifer Middleton. J’Noel Gardiner, who long had had strong feelings of female identity, successfully underwent sex re-assignment surgery in the early 90's. She changed all of her legal identification to female, and her husband, Marshall, knew of her history prior to their marriage. But after his death, his son successfully challenged the couple’s 1998 marriage, seeking to block J’Noel’s claim to her spousal share of the estate under Kansas law. Lambda Legal, in its amicus brief to the intermediate court, argued against the trial court’s refusal to recognize Gardiner’s sex change. The Court of Appeals undertook a detailed review of the scientific literature about transgender biology and psychology to reject what it called “a rigid and simplistic approach” to determining sex; it 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.

Middleton said of Friday’s ruling by the state’s highest court, “The Court here failed to grapple with the complexity of the many factors that make up a person’s sex-including, most importantly, psychological identity.” The case cannot be appealed. “It's sad that a loving couple's marriage and life together has been disrespected by a son, and now the court, because they cannot accept what a husband and father lovingly accepted. J'Noel Gardiner, like everyone else, should have the right to marry the person she loves," Middleton said.

Former Lambda Legal Staff Attorney Doni Gewirtzman wrote the brief with assistance from Pamela Summers of the ACLU of Illinois, with Lisa Nathanson of the ACLU of Kansas and Western Missouri serving as local counsel. Lambda Legal represented the Gender Public Advocacy Coalition in its brief.

Contact: Peg Byron, 212/809-8585 ext. 230; 888/987-1984 (pager)
Jennifer Middleton, 212/809-8585 ext. 213