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Transsexual’s Marriage Ruled Invalid By State Supreme Court

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MARCH 18, 2002 VOLUME 9, NUMBER 38

When Marshall Gardiner died in Kansas in 1999, he was survived by his wife of less than a year and his grown son. Mr. Gardiner left no will, but he did leave a legal controversy—whether his wife could inherit from his estate, since she had been born as a man.

Elder Law Issues first reported on the question of J’Noel Gardiner’s legal right to inherit from her husband’s estate in June, 2001. That was when the Kansas Court of Appeals ruled that “gender” meant more than external sexual characteristics present at birth. The Court of Appeals ordered further hearings into J’Noel Gardiner’s “gender” to determine whether she could be legally considered a woman, and the marriage validated (read the original Issues article).

The Kansas Supreme Court has now reversed that decision from the lower appellate court. In a ruling last week, the highest court in Kansas determined that the marriage between Marshall and J’Noel Gardiner was invalid because Kansas law prohibits marriage between two persons of the same sex. Despite extensive sexual reassignment surgery—and even a new Wisconsin birth certificate indicating that she is a woman—J’Noel Gardiner was born a man and remains a man for purposes of marriage in Kansas.

The dispute arose because Joe Gardiner, Marshall Gardiner’s son, challenged J’Noel Gardiner’s standing as a surviving spouse. He cited not only the plain language of the Kansas statute but also the legislative discussions when the law was passed. The Kansas legislature had made clear that it felt that marriage between two persons of the same sex was a violation of Kansas’ public policy, and the Court decided that it was bound by the legislature’s decision.

The justices took the narrow view of gender: a person is and remains the gender indicated by sexual characteristics at birth. “A male-to-female post-operative transsexual does not fit the definition of a female. The male organs have been removed, but the ability to ‘produce ova and bear offspring’ does not and never did exist. There is no womb, cervix, or ovaries, nor is there any change in his chromosomes,” wrote the Court, and therefore J’Noel Gardiner could not inherit from the estate of her “husband” Marshall. Estate of Gardiner, March 15, 2002.

The decision in the Gardiner case had been closely watched, of course, by attorneys and by advocates on both sides of the legal questions. The Court notes that there are a growing number of jurisdictions which have been forced to deal with similar issues. In 1999 the Texas Court of Appeals decided that a transsexual was not a “surviving spouse” for purposes of filing a wrongful death claim. In 1987 an Ohio court denied a marriage license to a couple on the basis that the proposed wife was born as a man.

One interesting exception to this trend appears in a case from the Sydney, Australia, family courts. In that case a marriage involving a postoperative female-to-male transsexual was sanctioned, based partly on a doctor’s report that his “brain sex” was male.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.