Gender bender: Marriage rights - Citings - same sex unions invalid in Kansas - Brief Article

Reason, June, 2002 by Sara Rimensnyder

TRANSSEXUAL WIDOW J'Noel Gardiner, whose 1998 marriage was recently declared invalid in Kansas, has never welcomed media attention. In one of few comments to the press during the three-year run of her case, she told the Kansas City Star, "It's a private lawsuit and nobody's business. Why don't you go join the Jerry Springer Show?"

She should be right. The trouble is, restrictions on marriage codified in law turn private sex lives into public business.

J'Noel's legal troubles began in 1999, when her husband Marshall passed away without a will. Soon, Marshall's estranged son Joe Gardiner found out that J'Noel was once jay Noel, and he challenged her right to share the $2.5 million estate under a state law that automatically gives a portion to a decedent's spouse.

J'Noel's sex change had taken place in 1994, in Wisconsin. Afterward, authorities there allowed her to change her name and the sex on her birth certificate from male to female. Neither that document, nor her electrolysis, thermolysis, tracheal shave, hormone injections, extensive counseling, or reassignment surgery constituted femalehood for the Kansas Supreme Court.

"J'Noel remains a transsexual, and a male for purposes of marriage under [Kansas law]," the judges' decision read. "We recognize that there are people who do not fit neatly into the commonly recognized category of male or female. ... However, the validity of J'Noel's marriage to Marshall is a question of public policy to be addressed by the legislature and not by this court."

The judges affirmed Joe Gardiner's win at the district court, which had ruled largely based on an earlier Texas trial. In that case, the judges asked, "Can a physician change the gender of a person with a scalpel, drugs and counseling, or is a person's gender immutably fixed by our Creator at birth?" They came down in favor of the latter.