Kansas Supreme Court Says Transsexual Marriage Invalid;

Rejects Claim for $2.5 Million

The Associated Press

TOPEKA, Kan. March 15 – A marriage between a man and a transsexual woman
is not valid in Kansas, the state Supreme Court declared Friday,
rejecting a transsexual’s claim for part of a $2.5 million estate.

The ruling came in the closely watched case of J’Noel Gardiner, whose
right to inherit half of her late husband’s estate had been challenged
by his son.

The sex change operations took place years before her 1998 marriage to
Marshall Gardiner. He died a year later, and his son, Joe, challenged
the validity of their marriage after discovering the sex change.

Kansas law declares same-sex marriages invalid, but it does not address
marriages involving transsexuals.

Transsexual advocacy groups had praised the Kansas Court of Appeals
decision in May that said the woman’s sex at the time of marriage was
the crucial issue.

But the high court, in a unanimous opinion, said J’Noel Gardiner is not
a woman and therefore cannot marry a man.

“The Legislature has declared that the public policy of this state is to
recognize only the traditional marriage between ‘two parties who are of
the opposite sex,’ and all other marriages are against public policy and
void,” Justice Donald Allegrucci wrote. “We cannot ignore what the
Legislature has declared to be the policy of this state.”

The decision was in line with a ruling in Texas that the U.S. Supreme
Court let stand in 2000 by declining to hear a transsexual’s claim about
her husband’s “wrongful death.”

In rejecting that case, the Texas Court of Appeals declared that a
transsexual’s female anatomy was “man-made,” and said it was up to the
Legislature to legalize marriages involving transsexuals.

Bill Modrcin, attorney for Gardiner’s son, said he was not surprised by
the Kansas ruling. Had the court ruled otherwise, “it would have been a
quantum leap,” Modrcin said. “Quite frankly, I don’t think it closes the
door to transsexuals. It just laterals the issue to the legislature.”

Neither J’Noel Gardiner (whose first name is pronounced jay noel) nor
her attorney had no immediate comment. In New York, an attorney for a
transsexual advocacy group that filed a friend-of-court brief on behalf
of J’Noel Gardiner called the ruling “thoroughly outdated.”

“It strikes me as the Supreme Court trying to bury its head in the sand
and ignore the reality of 21st century science and medicine,” said
Jennifer Middleton of the Lamda Legal Defense and Education Fund. “More
importantly, it ignores the reality of J’Noel’s life.”

J’Noel Gardiner, who teaches finance at Park University, just north of
Kansas City, Mo., was 40 when she married Marshall Gardiner, an
85-year-old university donor. Gardiner died the following year of a
heart attack.

Attorney Sanford Krigel had warned the court that concluding J’Noel
Gardiner’s marriage invalid would leave her the right to marry only

“You’re creating a situation where you would essentially be approving
what would appear to be a homosexual marriage,” Krigel said.

The court didn’t address that possibility in its ruling.

It did grant the $2.5 million estate to Joe Gardiner.

Copyright 2002 The Associated Press. All rights reserved.