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Today is Wednesday, November 28, 2007


Supreme Court Refuses to Hear Transsexual Marriage Case

The Supreme Court has the final authority to make pronouncements on the application of existing laws, by actively considering, or by passively rejecting consideration of a case. On Monday, October 7 the Court did the latter by rejecting the case of J'Noel Ball Gardiner.

Under Kansas law, Ms. Gardiner, whose marriage was called into question after her husband, Marshall Gardiner, died in 1999 without a will, should have been entitled to half of her husband's estate. Her husband's son, Joe Gardiner, wanted the marriage invalidated on the grounds that J'Noel, a transsexual, had been born male.

Joe Gardiner challenged J'Noel's inheritance claims in probate court, and a trial court agreed with the son. But a Kansas Appellate Court later overturned the decision. The Appellate Court ruled that gender is not fixed and that gender at the time of marriage is the determining factor in the validity of that marriage.

Joe Gardiner appealed this decision to the Kansas Supreme Court, which ruled, in a 9-0 decision, that J'Noel was "male for purposes of marriage." Relying heavily on dictionary definitions, the Kansas Supreme Court announced: "The words "sex," "marriage," "male," and "female" in everyday understanding do not encompass transsexuals.

"The common, ordinary meaning of 'persons of the opposite sex'", according to the state's Supreme Court opinion, "contemplates what is commonly understood to be a biological man and a biological woman. A post-operative male-to-female transsexual does not fit the common definition of a female."

The Kansas Supreme Court decision, and the U.S. Supreme Court's concurring sidestep of the issue, is problematic on several levels. It defines "male" and "female" according to ability to produce sperm or ova and to beget or bear offspring. But this seems to render sexless any women who had a hysterectomy or man who was infertile. It would also exclude those with extra chromosomes, or ambiguous genitalia at birth.

The decision should be a "wake-up call to the entire post-operative transsexual community," according to attorney, Alyson Meiselman, based in suburban Washington DC. She opined that it's possible the petition to the nation's high court may not have "properly preserved or argued" the Article IV issue. Meiselman, herself transsexual, added that "unless that attorney is an expert in transsexual legal matters, the transsexual client's cause will suffer."

"The court's ruling completely ignores the existence of intersexed citizens and totally denies their rights to marry," stated Vanessa Edwards Foster, chair of the National Transgender Advocacy Coalition (NTAC). "There are a large number of American citizens who are now legally barred from marrying." Foster continued, "women who are unable to conceive, men who are impotent, males with androgen insensitivity syndrome - none of them have the right to marry thanks to the state of Kansas. And the Supreme Court apparently agrees."

Perhaps the most troubling issue in this decision is its violation of the U.S. Constitution. Article IV, clause 1 of the Constitution states: Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.

Gardiner's appeal to the U.S. Supreme Court asked whether this clause "requires a State to recognize an individual's sex as reported in a birth certificate issued pursuant to court order by the State in which the individual was born." The State of Wisconsin recognizes J'Noel Gardiner to be female as manifest on her birth certificate.

The state of Kansas has opened a breach in Article IV of the Constitution. "The decision of the Supreme Court of Kansas side-stepped the Full Faith and Credit issue" based on the Kansas Appellate Court ruling, according to attorney Meiselman.

The attorney who petitioned the U.S. Supreme Court on behalf of Christie Lee Littleton, Meiselman added the high court's declining to hear the case would have two effects. "First, it leaves the Kansas Supreme Court's decision as the law in Kansas, as well as being authority that opponents to recognition will use in future cases outside of Kansas, as persuasive authority."

On the other hand "it allows the possibility that the U.S. Supreme Court may address the issue in the future," though Meiselman added it's unlikely given the ultra-conservative ideological make-up of the conservative Justices.

The decision not to consider the Gardiner v. Gardiner case definitively brings the case, and marriage, to an end. Meanwhile, J' Noel Gardiner, an assistant professor of finance at Park University, has had her personal and professional life turned inside out.

Gardiner, who met her husband at a university reception four years after having undergone sexual reassignment surgery, issued a statement after the ruling. "The pain, intrusion of our privacy, and the anger that runs through our blood could not be felt by anyone not in our shoes - not even the well-intentioned."

"People don't realize we have personal lives," lamented Christie Lee Littleton, who endured her own mistreatment at the hands of the courts. "What J'Noel needs right now is privacy. She just needs time to heal."

"The media wants to get quotes from us, and people call us wanting to help, but they don't realize we just want to be left alone," Littleton added. "We just lost our husbands ... we need time to grieve."

"We're just human beings."

Founded in 1999, NTAC - the National Transgender Advocacy Coalition - is a 501(c)(4) civil rights organization working to establish and maintain the right of all transgendered, intersexed, and gender-variant people to live and work without fear of violence or discrimination.

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