The Kansas Supreme Court has ruled that J’Noel Gardiner, a person born as a male, and having undergone sex reassignment surgery, was nonetheless male, and his/her marriage was void. Since her apparent husband died intestate, this means that the husband’s estranged son inherits the estate.
The court reviewed the detailed record developed by lower court hearings, and concluded that, despite the “long and difficult road” of sex reassignment surgery, J’Noel was still male, and cannot marry another man.
Assuming for the purposes of this discussion that marriage is properly limited to a male-female union, I contend that the court’s failure to carve out, as a matter of law, a principle that sufficient bodily modification can in fact change a person’s gender is error.
The court believes that the legislature’s failure to include language addressing the status of transsexuals is an indication of legislative intent to deny transsexuals any recognition with respect to their changed gender. I would hold that, absent clear legislative language declaring that no amount of surgery can reassign gender, the possibility exists that a person’s gender may be changed, and that whether this happened is a question of fact for case-by-case determination. In other words, I wouldn’t find that a “pre-op” transsexual, merely by virtue of a few hormone treatments or breast implants, was legally a woman, but I would likely reach that conclusion after “…electrolysis, thermolysis, tracheal shave, hormone injections, extensive counseling, and [complete] reassignment surgery.”
The Kansas decision is not binding on Florida, of course, but I don’t know if the Florida judge will find it persuasive.
I agree w/you Bricker, and find their finding troublesome. Certainly the deceased felt he was married to the other person.
Since our society does currently only sees two possabilities regarding gender, and there are in fact many people who do not fall neatly into either one or the other; they’ve complicated the issue by not attempting to outline the distinctions.
Where does one house a transgendered person when incarcerating them (for example).
Thanks, tekhead, but that’s really outside the debate as I’ve framed it. I said Assuming for the purposes of this discussion that marriage is properly limited to a male-female union, I contend that the court’s failure to carve out, as a matter of law, a principle that sufficient bodily modification can in fact change a person’s gender is error.
For what it’s worth, I believe that the province to define marriage quite rightly lies with the legislature, not the courts.
Ahem. Seriously, I don’t think conservatives have to give up a general rule that marriage normally be between male & female, so long as they recognize that some people are sexually ambiguous. And some of us are born with that ambiguity, & some choose it.
Really, I think some of these people have no idea there’s such a thing as a natural hermaphrodite. Or perhaps they think such a person is a freak to be stoned?
It occurs to me that that last post was unclear. I am not saying that transsexuality is a form of hermaphroditism, exactly. I am saying that those whose rhetoric abhors sexual ambiguity seem conveniently unaware that it occurs in nature.
As this Slate article-- http://slate.msn.com/?id=2063410 --points out, there are plenty of people whose visible natural sex is not clearly indicated by DNA, or have varying levels of sexual ambiguity.
The short answer to the question, who may a transsexual marry, is: nobody. A transsexual is legally whichever gender is most inconvenient for the transsexual at that moment. A post-op male-to-female transsexual cannot marry a man (conclusively in at least three states now) and also cannot walk around topless (except in those small number of places where women are permitted to be topless), even though this requires an inconsistent treatment of gender. The law doesn’t care, because it’s ok to shit on transsexuals.
While there have occasionally been victories for fair treatment of transsexuals, they are far outnumbered by the defeats. Any transsexual who marries should assume that the marriage is voidable and make such legal arrangements as are necessary and possible to ensure that his or her wishes will be carried out whether or not the marriage is rendered void by a court.
Federal procedure calls for incarcerating a pre-operative transsexual with others of the birth sex, and a post-operative transsexual with others of the reassigned sex. This has resulted in a number of people who are outwardly female and in fact not distinguishable as otherwise without pulling down pants being housed in the general population of men’s prisons – where they have been brutally abused by both the prison inmates and the guards. There have been many lawsuits, most of them dismissed on technicalities.
Oh, and the federal prison system is far better than most states in this regard. At least the feds will continue hormone therapy. Many states have denied incarcerated transsexuals hormone therapy as “medically unnecessary”.
Personally, I don’t think any legislative body or governmental body should have any say whatsoever regarding who can marry who SO LONG as all involved are consenting adults. I find it morally reprehensible that any governing body finds it necessary to dictate such a union in the first place. Regrettably, neither the so-called “less government” Republicans nor the “for the people” Democrats agree so I know that any and all marriage laws will not be dissolved any time soon. Nonetheless, it greatly bothers me that our government is so damned controlling. Then again, what else is new, eh?
Again, I appreciate the viewpoint, apollo9, and it sure sounds like you’ll have something important to contribute when we have another Gay Marriage thread.
But I’m trying to get debate concerning the narrow issue of: as a matter of law, can some amount of surgery cause a born female to become male. If marriage is too distracting, we can focus on the excellent question of prison facilities, as wring and KellyM have mentioned. Or perhaps military service: is a post-operative female-to-male transsexual eligible for infantry combat duty? Would such a person bunk with the men, or with the women?
Kansas seems to suggest that as far as the Sunflower State is concerned, no matter what sort of surgery or other medical treatments a person undergoes, a person born male remains a male as a matter of law. Is this error? Why? Doesn’t Kansas have the perfect right to determine who is and who is not male and female within their borders?
Regarding the state “defining” who can marry whom, all of the specific rights given to married people (inheritance, IRA beneficiary rules, income tax filings, hospital visitation rights, etc.) are provided by the state. Therefore, the state must determine what constitutes marriage in order to apply those rights. Note that by “state” I mean any applicable governmental entity.
Now the question of whether the state is properly defining marriage seems to be the issue here. This is a different issue than whether gays and lesbians should be able to legally marry (Yes, IMHO). I can see absolutely no reason why this Ms. Gardner should not be treated as a woman in all respects, including the right to marry a man.
I really hope that she will try to make a statement and marry a “natural” woman.
Not surprisingly, KellyM has said most of what I had to say.
The government’s positions on post-op’s has been highly inconsistent. Some states consider only what’s on the birth certificate when judging whether a marriage is legal. As a result, there are a handful of instances where a transexual lesbian (it happens. Once again I refer everybody to Rachel Pollack. Besides being a fine author, Pollack is a self described “transexual lesbian”) has been able to legally marry their lover.
A Supreme Court ruling on the issue of post-operative gender would be welcome. Regardless of what the ruling was, at least all the laws would conform.
So, apollo9, you think “any and all” marriage laws are bad? So, I suppose you would then support all of these marriages?
[ul]
[li]Incestuous - If anyone can marry anyone so long as all are consenting adults, can I marry my sister or mother?[/li][li]Multiple/group marriages - If anyone should be able to marry anyone, why should the fact that one (or both) of the parties are currently married to one another be a bar to another marriage.[/li][li]Sham marriages such as “green card” marriages. As long as both consent, should I be able to pull this scam?[/li][/ul]
Obviously, we need marriage laws, if only to define what marriage is and how/when it is terminated. So, your call to dissolve “any and all” marriage laws really doesn’t make sense.
Actually more than many people think. From the numbers I’ve seen, about 1/4 to 1/3 of post-op male-to-female transsexuals are lesbian. Bisexuality seems to be even more common.
Damn trannie dykes. They’re everywhere! (And, yes, I am entitled to say that, since I’m one myself.)
So if a person has ovaries and testes, which are they according to the law, male or female?
The article further goes on to talk about a case where a man had not only external male genitalia, but a vaginal opening and also menstruated. What does the law consider that person?
And then we have the chromosomal issues, as well. There are cases where people who outwardly have male characteristics, possess the odd XXY set of chromosomes. Male or female according to the law?
The bottom line, IMNSHO, is that the law has no business determining one’s sex. If someone with a penis and/or testes chooses to live their lives as a female, or someone with a vagina feels more comfortable as a male - for whatever reason - and they go through whatever means are necessary to have their genitalia match their “internal” sex, then that are what they live as and the law should have no basis to claim they are anything but what they say they are.
I would say “no.” Laws serve multiple functions. They should generally be “just.” However, it is equally important that they be predictable. If everyone understands clearly what the law is, people can make decisions and arrangements based on those laws.
In this case, for example, had there been a clear rule in Kansas that this couple could not legally marry, the parties could have taken that into account and taken whatever steps necessary to create whatever legal effect they wanted.
Hard facts, do indeed, make bad law. The idea of evaluating a person’s sex on a case-by-case basis “after the fact,” as it were, is a non-starter. People need predictability, especially when it comes to basic legal relationships.
The fact that some children are born who may not fit neatly into a specific sex category is irrelevant in this context. The issue isn’t what sex you have so much that you have one and can make choices for yourself based on it.
Finally, this simply isn’t a queston for the judiciary. As I said, predictability is the touchstone here. If the Legislature wishes, it may pass a law detailing a formal procedure which will allow a person to change their legal sex. Some states have done exactly this.
It is inappropriate, however, for the judiciary to take it on itself to hold that a person’s legal sex is a matter of personal choice. What would they rely on, common law? Blackstone’s Commentaries?
