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Today is Tuesday, November 27, 2007


Suit Over Estate Claims a Widow Is Not a Woman

[LEAVENWORTH, KS] - J'Noel Gardiner is hardly the first widow to be accused of marrying a man twice her age for money instead of love, with a stepson she first met at her husband's funeral trying to block her inheritance, reports the New York Times.

But Mrs. Gardiner has much more at stake than a share in a $2.5 million estate, including a 135-year-old brick home here in Kansas' oldest city. Her stepson, Joe Gardiner, hopes to nullify the 11-month marriage, claiming his father's widow is not actually a woman.

"There's not a widow alive who wouldn't fight to defend her marriage," said Mrs. Gardiner, 44, who was born male but has had a series of surgeries to make her body conform to the female identity she says she has always felt. "I am anatomically, biologically, socially and, most important, spiritually, female. I don't like other men and women defining our sex."

At its core, the unusual probate case, which the Kansas Supreme Court is expected to decide by month's end, revolves around the question of what makes a man a man and a woman a woman. It could have profound implications on the debate over same-sex marriage - which Kansas and at least 27 other states explicitly prohibit - and on the emerging issue of transsexuals' rights.

A February 2000 District Court ruling that sex is determined at birth and can never be changed was overturned in May, as an appellate panel outlined a formula for determining sex based on a mix of psychological and physiological factors. Since marriage is seen as a fundamental right, several legal experts said that if transsexuals like Mrs. Gardiner were barred from marrying men, they would probably be allowed to marry women.

Indeed, after a Texas court invalidated a similar marriage in 1999, at least two male-to-female transsexuals have married women in that state.

"We're talking 'Brave New World' here," said Edward White, associate counsel of the Thomas More Center for Law and Justice, a public interest law firm that focuses on traditional values and is one of several national groups that have filed briefs on behalf of either side in the case. "If a determination is made that a transsexual can marry, the next step would be homosexual marriage and lesbian marriage."

But Jennifer Middleton of the Lambda Legal Defense and Education Fund, a gay rights group, says courts and legislatures lag behind science and society in seeing a blur between male and female. "How much of what we think of as appropriate for a woman or a man is biologically determined versus socially constructed?" she said. "It's very difficult when the law tries to draw clear-cut lines saying that it's O.K. for a woman to do something but not a man, or vice versa."

Mrs. Gardiner was born Jay Noel Ball with what she calls a birth defect - a penis and testicles. As Jay Ball, she was married to a woman for five years, but at age 34 embarked on a transformation that included hormone therapy, a vocal-chord shave and cheek implants. After operations to create a vagina, Mr. Ball in 1994 changed his Wisconsin birth certificate to reflect a new name, J'Noel Ball, and sex, female.

In 1997, Ms. Ball, who has a Ph.D. in business from the University of Georgia, took a job at a college outside Kansas City, Mo., now called Park University. The following May, she met Marshall G. Gardiner, a former state legislator and chairman of the Kansas Democratic Party. They married four months later.

"We were soul mates," Mrs. Gardiner said of her 86-year-old husband, who died of heart failure aboard an airplane in August 1999.

Joe Gardiner, Mr. Gardiner's only child, learned of the marriage after the fact in a phone conversation. Nobody mentioned medical history.

After the funeral, Joe Gardiner discovered an incomplete prenuptial agreement and a one-sentence document signed by J'Noel Ball before the wedding that appeared to waive her rights to his father's estate. He hired a private detective, and hundreds of pages of medical records on the sex change were added to the court file.

Because Marshall Gardiner had no will, Kansas law dictates that his estate be split between wife and son. Joe Gardner's half is not in dispute.

In legal documents, Mr. Gardiner says in a footnote he is using the feminine pronoun only as a courtesy, and argues that the widow suffers from a mental disorder.

"It's an illusion, it's an image she's trying to project, but it doesn't change the laws of God," he said at the home where he and his father grew up, and where he flies a ripped Union Jack to protest "taxation without representation" on the estate.

Julie A. Greenberg, a professor at the Thomas Jefferson School of Law in San Diego whose law review article was the basis of the Kansas appellate ruling that sex was not solely determined by genetics, said that 275,000 to 2.5 million people in the United States were born with a mix of chromosomes, genitalia and hormones that made them neither clearly male nor female. She and others said there were no reliable estimates on the number of sex-reassignment surgeries.

Mrs. Gardiner refused to discuss transsexuality: "To me, it's like talking about a tonsillectomy." Talking about the litigation, she said, makes her miss him most.

"If Marshall were still alive, I wouldn't have to be explaining to another woman that I'm a woman," she said. "He would be standing here saying, 'How dare you ask my wife these questions?'"

Related Stories:

May 12, 2001 - Transsexual's Marriage Upheld

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