Wedding-bell Gender Blues. Look for more legal confusion over whom a transsexual may marry, if anyone. As reported in the Kansas City Star last week, the Kansas Supreme Court ruled that male-to-female transsexual J'Noel Gardiner's marriage to her late husband, Marshall Gardiner, was invalid, thereby providing a victory to her husband's son, who successfully sought to deny J'Noel's inheritance of Marshall's $2.5 million estate. Not of particular relevance, but of salacious interest, J'Noel was 45 years junior to her 85-year-old-husband, who passed away less than a year after their nuptials (oh, what a plot fit for "Dynasty"!).
The state Supreme Court's unanimous ruling said that despite her sex change surgery and body altering treatments, J'Noel remained a man for purposes of marriage. It thus overturned a decision by the Kansas Court of Appeals, which approved the marriage as valid after finding there's more to gender than "simply what the individual's chromosomes were or were not at the time of birth."
Here's the tricky part -- various courts in other states have reached different conclusions on whether transsexuals may legally wed members of their same birth sex or not. And, according to a New York Times story posted on gaylawnet, several legal experts believe if male-to-female transsexuals are barred from marrying men, they are consequently allowed to marry women -- despite the fact that their legal identification (including, in many cases, a revised birth certificate) lists their gender as female. In fact, after a Texas court invalidated a marriage similar to the Gardiner's, at least two male-to-female transsexuals have married (other) women in that state. Are these marriages, then, legal lesbian unions? It's at least debatable.
Pro and con advocates on same-sex marriages, of course, are having their say. In the gaylawnet article, Jennifer Middleton of the Lambda Legal Defense Fund asks, "How much of what we think of as appropriate for a woman or a man is biologically determined versus socially constructed?" However, I'm not sure the premise that sexuality is a social construct is going to win the day outside of the academy. On the other side, as quoted in the Kansas City Star, Bill Duncan of the Catholic University of America's Marriage Law Project declares, "We have a mission to reaffirm the legal definition of marriage as a man and a woman," noting, "but we haven't thought that much about what makes a man a man and a woman a woman." And with transsexuals, squaring that circle ain't so easy. The solution, of course, would be to allow any two consenting adults who are not incestuously related to wed -- but, apparently, that's TOO easy.