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KANSAS SUPREME COURT DECISION IS A CALL TO ACTION
March 26, 2001
FOR MORE INFORMATION:
National Center for Lesbian Rights
Bergstedt, Clegg & Wolff
On March 15th, the Kansas Supreme Court ruled that the marriage of J'Noel Gardiner to her late husband, Marshall Gardiner was invalid. In ruling that Gardiner was not a woman in a probate case brought by her late husband's son, the Court wrote, "The words 'sex,' 'male,' and 'female' in everyday understanding do not encompass transsexuals...A male-to-female post-operative transsexual does not fit the definition of a female."
The Transgender Law & Policy Institute (TLPI) condemns the Kansas Court's decision and its out-moded rationales for invalidating Ms. Gardiner's marriage. According to TLPI board member Shannon Minter, "the decision is a throwback to the older view of transgender people as neither male nor female, rather as subhuman freaks who are not legal persons and don't -- and shouldn't -- have any legal rights."
Ms. Gardiner is a male-to-female transsexual (MTF) who has undergone the requisite medical treatment to be regarded by her birth state (Wisconsin), medical and mental health professionals, and the people with whom she interacts daily, as a woman.
In the Court's decision, Chief Justice Donald Allegrucci wrote that despite having transitioned many years ago, despite having legally changed her name, birth certificate, and other legal documentation, "J'Noel remains a transsexual, and a male for purposes of marriage under Kansas law. A post-operative male-to-female transsexual does not fit the common definition of a female."
"Although the court claimed its opinion accurately interprets words that are in common usage and understood by the general population, reaction to the court's opinion in the press and during radio call-in shows indicates that most of the people who have provided a public reaction to the opinion do not agree with the court. Comments about the opinion by columnists, legislators and others refer to the ruling as "head scratching," "thoroughly outdated," and not comporting with "common sense," says Julie Greenberg, a Professor of Law at Thomas Jefferson School of Law who has written widely on transsexual and intersex legal issues.
"This decision is unfortunately what I expected from such a conservative state. It is discouraging that the courts are not a place to seek justice. This decision is very inhumane and serves to invalidate the life of Ms. Gardiner and every other person that does not fit squarely within societies predetermined gender lines, " says attorney and TLPI board member Kylar Broadus.
Professor Greenberg notes that the court, in determining who qualifies as a male and who qualifies as a female, "had before it the thorough and well-reasoned appellate opinion as well as the latest scientific and international developments on the issue. Instead of relying on these authorities, the court based its decision in part on a 1970s definition of sex contained in Webster's dictionary. Males are the 'sex that fertilize the ovum and beget offspring.' 'Females "produce ova and bear offspring."' The court decided that this everyday general understanding of the terms male and female preclude J'Noel qualifying as a female. Under this 'plain ordinary meaning,' millions of infertile people may no longer be considered 'men' and 'women.'"
The Transgender Law and Policy Institute notes that the ruling could have unfortunate results for many people in the State of Kansas, not just transsexuals. If read literally, the law in Kansas may now prevent the following people from getting married: infertile, sterile, or post-hysterectomy women, infertile or sterile men, men who have lost their penises to accident or disease, women who are post-menopausal, intersexed person's (i.e., person's who may share certain biological characteristics of both male and female - which occurs in 1:2000 births nationwide).
"Of course we're not sure how the State is supposed to determine who is male or female for the purposes of obtaining a marriage license," notes attorney Spencer Bergstedt. "The Court didn't bother to set out the testing requirements - whether they be dropping one's drawers for genital inspection, fertility testing, or chromosonal testing."
One clear result of the court's ruling is that de facto same-sex marriages will now be possible in Kansas. A post-transition female-to-male transsexual (FTM), who appears male, will now legally be able to marry a gay male partner as they will, according to the Kansas Supreme Court, be an opposite sex couple.
There are many other unknowns that could result from the Court's ruling and only time will tell how to answer such questions as: Which restrooms should transsexuals use? Can a transsexual demand to be searched by someone who is of their birth sex at an airport rather than someone who matches their current apparent sex. If the transsexual is someone who works at an airport, as a security screener, will they only be allowed to work with those of my birth sex in situations requiring physical contact? Will MTF's be allowed to join Men's Social Clubs (country clubs, Masons, Knights of Columbus, etc.), be a boy scout leader? Will FTM's be allowed to join woman's social clubs and be girl scout leaders?
Despite these possible results from the ill-thought-out Kansas ruling, TLPI does note that there are many other cases involving transsexuals which take a far more reasoned approach. "Clearly education efforts and presenting clear and convincing medical evidence has been successful in other cases. In many ways, the law simply hasn't caught up to medical advancements and it is important to present the court's, legislatures, and local municipalities with the facts of medical science so that fair decisions and fair laws can be passed," says Minter, who is also the Legal Director of the National Center for Lesbian Rights.
TLPI notes that many states and local municipalities have passed statutes and ordinances which protect transsexual and gender variant persons in such areas as employment and public accommodations. As Kylar Broadus notes, "fortunately, there are other fair minded courts out there that want to be just and fair." TLPI will endeavor to redouble its educational efforts throughout the coming months and encourages all fair-minded people to educate themselves and others so that all people may marry if they so choose.
The Transgender Law & Policy Institute is an organization made up of attorneys and political scientists working to educate the public, politicians, lawyers and the courts about transgender and gender variant individuals and their legal rights. Visit us on the internet at http://www.transgenderlaw.org.