Transsexual Will Ask U.S. Supreme Court to Review Kansas Ruling
[LEAVENWORTH, KS] - Transsexual J'Noel Gardiner will ask the U.S. Supreme Court to compel the state of Kansas to recognize her as a woman, her lawyer said Wednesday.
Last month, the Kansas Supreme Court ruled that Gardiner was a man under Kansas law, and thus not entitled to a share of her late husband's estate.
The issue of Gardiner's gender was raised by her stepson, Joe Gardiner, who challenged his stepmother's claim to half of his father's $2.5 million estate. J'Noel Gardiner's husband, Marshall Gardiner of Leavenworth, left no will when he died in 1999.
In its unanimous ruling, the state Supreme Court said that while J'Noel Gardiner had "traveled a long and difficult road" that involved sex-change surgery, she remained a man for purposes of marriage.
J'Noel Gardiner is challenging that ruling because after undergoing sex reassignment surgery, she was granted a court order in 1994 amending her Wisconsin birth certificate to state that she is female.
Her lawyer, Sanford P. Krigel, is basing his appeal on Article IV of the U.S. Constitution, which guarantees that public acts and records valid in one state are valid in every state.
A formal request, he said, would be filed with the Supreme Court within the next six weeks.
J'Noel Gardiner, a 44-year-old Park University finance professor who lives in Weatherby Lake, did not return phone calls for comment Wednesday.
In making his argument, Krigel cited a common example: A couple divorced in one state is considered divorced in every state, although individual state laws differ concerning divorce.
"At one time some states didn't recognize divorces from other states, and the Supreme Court intervened," Krigel said. "We think it's precisely the same issue.
"Once Wisconsin declared Mrs. Gardiner a woman, she should be considered a woman in the other 49 states," he said Wednesday.
Kansas has no provision for amending birth certificates for transsexuals, but about 20 other states, including Missouri, do allow it.
Missouri's law, which is similar to Wisconsin's, reads: "Upon receipt of a certified copy of an order of a court of competent jurisdiction indicating the sex of an individual born in this state has been changed by surgical procedure and that such individual's name has been changed, the certificate of birth of such individual shall be amended."
In making its unanimous ruling last month, the Kansas Supreme Court relied upon definitions of "male" and "female" found in a 1970 Webster's dictionary. The definitions hinge on men's and women's ability to reproduce.
The justices said that Kansas statutes only recognize marriages between males and females.
"We recognize that there are people who do not fit neatly into the commonly recognized category of male or female, and to many life becomes an ordeal," wrote Justice Donald L. Allegrucci. "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."
Related Stories:Mar 15, 2002 - Kansas Supreme Court Ignores Scientific Evidence of Sex Change
Jan 13, 2002 - Suit Over Estate Claims a Widow Is Not a Woman
May 12, 2001 - Transsexual's Marriage Upheld