Miranda Writes... by Miranda Stevens-Miller A Matter for the Supreme Court?

J'Noel Gardiner is a woman. There can be no question about that. Or can there?

The Kansas Supreme Court thought so when they declared J'Noel's marriage to Marshall Gardiner null and void. The same thing had happened in Texas a few years ago when the Texas Court of Appeals nullified Christie Lee Littleton's marriage of seven years.

J'Noel Gardiner is a transsexual woman. She's just like me. In fact, we went to the same surgeon for reassignment surgery. We've walked down that same path, as did Christie Lee Littleton. Christie Lee had sued a hospital for the wrongful death of her husband, and lost in the Texas court when they declared that she is not a woman.

And regardless of the fact that J'Noel is anatomically correct, and has the papers to prove it, with a birth certificate to go along with her gender, the Kansas Supreme Court declared that J'Noel is not a woman, and therefore was never entitled to marry Marshall Gardiner.

J'Noel was married to Marshall in 1998. When he died of natural causes two years later, it seemed only fair that his wife inherit his estate.

But Marshall's estranged son, Joe, didn't want his stepmother to have the inheritance. He wanted it all to himself. So he took the case all the way to the Supreme Court of Kansas, and had J'Noel's gender invalidated.

Why are some of the higher courts in this country getting involved in marriage annulments? What weighty decisions are the scales of justice bending under? What landmark cases are the learned justices grappling with?

It all comes down to one of those insidious "defense of marriage acts" that have embedded themselves in state laws throughout the country. In this case, the Kansas law states that marriages are limited to two parties of opposite sex and all other marriages are void, even if they are valid in another state.

Now, I am not a lawyer, so a lot of this is mumbo-jumbo to me. But is it fairly indicative of the state of mind of the Kansas Supreme Court when they cite the following passage from the Littleton case:

"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?"

Seems to me, that is a theological question, and not a legal one. It is a question not unlike other classics such as "How many angels can dance on the head of pin?" It is just as unanswerable.

So they retreated to an area that they felt more comfortable with. A significant portion of their decision is based on the surgical mechanics of changing the body from the outward appearance of one gender to that of the other. They grappled with the genitals of justice.

But the framework that Kansas Supreme Court justices were operating within was that of the soul… a subject in which the court is hardly qualified.

A lower court that had previously ruled in favor of J'Noel, had also looked at the Littleton case, but they rejected the rulings in that case "as a rigid and simplistic approach to issues that are far more complex…" At least they recognized what they were up against.

Could the Kansas Supreme Court have rendered a different decision? Well, they could have, if they had looked beyond the rigid and simplistic. They could have given more consideration to the psychology of gender. They could have given more consideration to an Australian ruling which was less simplistic that the Littleton ruling, and didn't rely on interpreting what the Creator had intended.

In the Australian case, Kevin, a transsexual man (female-to-male) was examined by two psychiatrists, both of whom concluded that Kevin is and always has been psychologically male. They cite Milton Diamond, an American professor of anatomy and reproductive biology, who said that, "further research will confirm the present evidence that brain sex and mental sex is a reality which would explain the persistent of a gender identity in the face of or contrary to external influences."

Is this a matter for the Supreme Court to decide? I don't think so. These people are way too "rigid and simplistic" to ever make the right decision. But since we live in a rigid and simplistic society, the only answer is to work with legislators to create laws that even the most simple-minded Supreme Court Justice cannot misinterpret… and to get rid of those damn defense of marriage laws.