Court of Appeals reverses decision on marriage validity

TOPEKA—The Court of Appeals today reversed a Leavenworth County decision in a probate case denying a petition by a person who had undergone a sex-change operation to inherit from her deceased husband's estate.

In striking down the trial court's ruling denying the validity of the marriage, the Court of Appeals remanded the case for further consideration. Said the court in a decision authored by Judge Robert L. Gernon: "In determining the validity of a marriage in cases in which the sexual identity of a party is at issue, a trial court must consider and decide whether the individual was a male or female at the time the marriage license was issued and not simply what the individual's chromosomes were or were not at the time of birth." The opinion then lists seven other factors that should be considered in making the determination.

The ruling came in a probate case in which the son of Marshall G. Gardiner, Joe, filed for letters of administration in Leavenworth County District Court. His petition was countered by one filed on behalf J'Noel Gardiner, who had married the decedent in September 1998, following a sex-change operation and other procedures in the early 1990s to change gender to that of a woman. J'Noel was issued a new birth certificate in Wisconsin indicating her sex as female.

"The legislative history contains discussions about gays and lesbians," Gernon wrote, "but nowhere is there any testimony that specifically states that marriages should be prohibited by two parties if one is a post-operative male-to-female transsexual. Thus, the question remains: Was J'Noel a female at the time the license was issued for the purpose of the statute?"

The trial court held that the marriage was invalid finding that J'Noel was born a male and remains a male for purposes of marriage under Kansas law; however, the Court of Appeals concluded that numerous other factors in addition to chromosomes have to be considered in making the determination. Thus, the Court of Appeals, citing scientific references in a law review article, and scientific findings in a medical journal, reversed and remanded the case so that each side would have the opportunity to present evidence on the factors the court ordered should be considered. Using those factors, the trial court must then decide whether the marriage was valid and J'Noel can share in the estate as a spouse.

In a companion case, the court also remanded the issue of attorney fees for redetermination in light of the reversal in this case. Decisions in the two appeals, No. 85,030 and 85,159, are at www.kscourts.org.