US Gov attempts to define gender

[judy]

EvilAnya -- Some in the trans community (not all as the community is by no means a homogenous group with ONE opinion) prefer the term non-trans woman or non-trans man rather than "bio" or "genetic." Thanks for bringing this up.

[Banshee]

My question is, did Kansas have something on the books about marriage having to be between a BIOLOGICAL male/female before this case? Because if they didn't, this woman has a good leg to stand on as far as repealing. Though DOMA does define marriage between one man and one woman..it says NOTHING about whether it has to be biological. If this woman keeps fighting, then I wouldn't be suprised if we see this in the Supreme Court in a few years.
Also, I don't know how many of you have seen the movie 'Southern Comfort' but it is a very sad tale of a f->m transexual who developed uterine cancer and his doctors refused treatment and, eventually, he passed away from his condition.
I know in NY there is a lot of noise being made about Trans not being included in a non-discrimination bill, with every right. Unfortunately, there is some lacking education and understanding in our community about Transpeople and trans have to fight just to have their name included.

-S

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"Believe me I don't want to go,
And it'll grieve me 'cause I love you so
But we both know..."

[with catlike tread]

This case raises some extremely interesting issues, but it only came about because of the competing claims for the inheritance of an estate. The extremely simple way around that whole issue is to have a law (like is the case in much of Australia and I am sure in many places in Europe) that makes no legal distinction between married people and people in de facto relationships. De facto is defined as being 'any two people in a mutually supportive relationship' and makes no distinction between hetero/gay/trans etc etc couples. In other words, to inherit there is no difference between married or de facto and even if you 'can't' get married you have exactly the same rights as someone who is married (and this extends across the board - superannuation, life insurance, medical treatment etc). In most Australian states you are defined as a 'spouse', rather than a 'wife' or 'husband'.

Of course, this does not resolve all the issues, in particular the right to get married and the right to have/adopt children (or, as occurred in Australia, to participate in IVF if you are a 'fertile' but lesbian woman).

However, once you give de facto relationships legal status and rights, marriage then becomes 'only' a statement of committment, because it makes no legal difference. Of course, many people will still want to make that public committment (and its easy enough to change the law, but for some reason hardly any countries have done it), but the legal (financial) disadvantages of not being married disappear.

I am aware the sanctity of marriage issue is a much bigger issue in the USA than in many other countries, so the de facto suggestion may not be feasible. But it is a much simpler solution than trying to define something that cannot be defined (even by those bright judges of Kansas).

Have a read of an interesting article about this case in Slate
http://slate.msn.com//?id=2063410

It picks up on the court comment "a male-to-female transsexual whose sexual preference is for women may marry a woman," the court noted, "because, at the time of birth, one marriage partner was male and one was female. Thus, in spite of the outward appearance of femaleness in both marriage partners at the time of the marriage, it would not be a void marriage. …"

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taran-tara taran-TARA

[Kalita]

Yes, we have something similar in Canada, it's called a common-law relationship. Basically, any 2 people who share a residence and wish to be considered so, are 'equivalents to spouses' for many, but not all, legal purposes. They can be romantically involved, they can be blood relatives, they can be roommates.

I forget where common law drops off and actual marriage picks up; I'm hazy on this stuff...

[Shadowcat]

Shannon, in the court decision, they stated that the terms "man" and "woman", in this case, were what was conventionally thought as to the genders. You can get the details here.

This is what it states:

quote:

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 85,030

IN THE MATTER OF THE ESTATE OF

MARSHALL G. GARDINER, Deceased.

SYLLABUS BY THE COURT

1. Summary judgment is appropriate when there is no genuine issue of material fact.

2. The fundamental rule of statutory construction is that the intent of the legislature governs. When construing a statute, words in common usage are to be given their natural and ordinary meaning.

3. In determining legislative intent, courts are not limited to consideration of the language used in the statute but may look to the historical background of the statute, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.

4. We apply the rules of statutory construction to ascertain the legislative intent as expressed in the statute. We do not read into a statute something that does not come within the wording of the statute. We must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.

5. The legislature has declared that the public policy of this state is to recognize only the traditional marriage between two parties who are of the opposite sex.

6. The words "sex," "marriage," "male," and "female" in everyday understanding do not encompass transsexuals. The common, ordinary meaning of "persons of the opposite sex" 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.

7. A traditional marriage is the legal relationship between a biological man and a biological woman for the discharge to each other and the community of the duties legally incumbent on those whose relationship is founded on the distinction of sex.

8. The stated purpose of K.S.A. 2001 Supp. 23-101 and K.S.A. 2001 Supp. 23-115 is to recognize that only traditional marriages are valid in this state. A post-operative male-to-female transsexual is not a woman within the meaning of the statutes and cannot validly marry another man.

9. Pursuant to K.S.A. 2001 Supp. 23-101, a marriage between a post-operative male-to-female transsexual and a man is void as against public policy.

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Gee, I guess that all intersexed people are screwed by this ruling, too. I mean, if a completely "normal" woman were born with XY or XXX chromosomes, they wouldn't really be "normal", and wouldn't be allowed to marry. Better hope your genitals are perfect, too, or you might be refused the right to marry.

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Kitty Trauma Victim #123

[This message has been edited by Shadowcat (edited March 21, 2002).]quote:

[Banshee]

But, see--there's a flaw in this. Just because the S.C. of Kansas has ruled that marriage is between 1man/1woman, does not mean that they ruled on that because of a definition within their State Constitution or lawbooks--they are opinioning that on their own. I would, however, be very interested in reading their statute in which they supposedly ruled from.
Still, what this woman has a case for is gender discrimination--which is party to the strictest scrutiny under the S.C-US. What this does is make it very hard for the person that is being sued to have to prove the who/what/why/whens of their case. This is not a sexual orientation case--and if it were then she'd be screwed.. but, esentially it's because she was born a man--otherwise, if she was born female, this would be such a non-issue.
But, welcome to the world where Anna Nichole Smith can marry a 90yr and walk away w/80million in California.. But, in Kansas, if you honestly marry for love.. you get shit.

-S

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"Believe me I don't want to go,
And it'll grieve me 'cause I love you so
But we both know..."

[Shadowcat]

Of course. If she had been born, physically, female, the case would be cut and dry. What it all came down to for the court was whether J'Noel was really a man or a woman. They ruled that she was a man, because that was what was originally written on her birth certificate, EVEN THOUGH it has been changed to female since she had SRS!! It's crazy, I tell you.

I know I keep posting wordy articles, but this is one that I thought was very good, and talks about the case.

quote:

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frame game

The Trying Game

The mutual frustration of transsexuals and conservatives.

By William Saletan

Posted Wednesday, March 20, 2002, at 2:57 PM PT
http://slate.msn.com/?id=2063410

Last Friday, the Kansas Supreme Court ruled that J'Noel Gardiner, a post-operative male-to-female transsexual, was still a man. Therefore, J'Noel's marriage to Marshall Gardiner was void, and Joe Gardiner, Marshall's estranged son, gets his whole estate. The ruling is dressed up as a victory for gender clarity, but it isn't. Both sides of the debate over transsexuality want clarity. And neither achieves it.

If you page through the court's opinion, you'll learn about all sorts of things they didn't teach you in school, such as cheek implants, tracheal shaves, rhinoplasty, and bilateral orchiectomy. You'll read about how doctors "cut and inverted the penis, using part of the skin to form a female vagina, labia, and clitoris." You'll learn that J'Noel was born with the name Jay Ball, that she testified about bringing her husband to orgasm, and that the first U.S. case involving transsexuality was Anonymous v. Weiner.

You'll also have to rethink what makes a man a man and a woman a woman. To Joe Gardiner and the district court that sided with him, the answer is simple: Jay Ball was born male, therefore J'Noel is a man. To those who believe in transsexuality, it isn't that simple. A person is born with a mind and a body, and the two can be at odds. "An individual's sex is comprised of many factors, including chromosomes, internal organs, external genitalia, hormonal levels, secondary sex characteristics, and perhaps most importantly psychosocial identification," the ACLU and the Gender Public Advocacy Coalition told a Kansas appeals court in a brief supporting J'Noel. Jay Ball appeared to be all male, but he wasn't. He was conflicted.

So he-she-got rid of the conflict. "[P]hysical characteristics can, importantly, be conformed to an individual's psychological and social sexual identity," GPAC and the ACLU argued. "Ms. Gardiner's external anatomy, hormonal physiology, secondary sex characteristics, official records, and psychosocial identification all indicate that she is female." The appeals court agreed that such factors should be weighed. According to cases quoted by the court, a sex change should be legally recognized if these factors were "reconciled," "harmonized," and "unified." Unity, not androgyny, was what J'Noel had put herself through surgery and hormone therapy for. She didn't want to be a gay man or a cross-dresser. She wanted to be a woman.

"If Marshall were still alive, I wouldn't have to be explaining to another woman that I'm a woman," she told the New York Times. "He would be standing here saying, 'How dare you ask my wife these questions?' "

J'Noel succeeded as far as any transsexual can succeed, which is to say, incompletely. The Kansas Supreme Court, like the district court and a Texas court before it, pointed out that J'Noel's chromosomes, skeleton, and internal organs were still male. The court played the role of Reg in Life of Brian, who mercilessly reminds another character, Stan, that he can't become a complete woman.

Stan: It's every man's right to have babies if he wants them.

Reg: But you can't have babies.

Stan: Don't you oppress me.

Reg: I'm not oppressing you, Stan. You haven't got a womb! Where's the fetus going to gestate? You going to keep it in a box?

GPAC and the ACLU accused the district court of ignoring J'Noel's "lived experience." An attorney from the Lambda Legal Defense and Education Fund, which helped write the GPAC brief, faulted the Kansas Supreme Court for pretending that "J'Noel's marriage never existed." But J'Noel, too, sought to deny her experience and erase her history. Eight years ago, she asked a court to change the name and sex on her birth certificate. In accordance with Wisconsin law, the court did so. In the Kansas district court, J'Noel's lawyer argued not that J'Noel really was female, but that Kansas had to accept the assertion on her birth certificate that she was female. The court, however, refused to give up the crazy notion that a birth certificate is supposed to certify what actually happened.

Joe Gardiner and the Thomas More Law Center, which filed a brief supporting him, call the Kansas Supreme Court's ruling a victory for "traditional" marriage. The center's brief argued that allowing J'Noel to marry a man would invite moral chaos. "What about the male transsexual who lacks the necessary financial resources to undergo a similar sex change procedure?" asked the center. "What would prevent that male transsexual from marrying another man in Kansas under the same theory advanced by J'Noel? Nothing." This was the nightmare the center sought to avert: Two people, externally of the same gender, legally wed.

But the ruling yields exactly that result. "Applying the statute as Joe advocates, a male-to-female transsexual whose sexual preference is for women may marry a woman," the court noted, "because, at the time of birth, one marriage partner was male and one was female. Thus, in spite of the outward appearance of femaleness in both marriage partners at the time of the marriage, it would not be a void marriage. ." Three years ago, a Texas court reached the same conclusion. Now two externally lesbian couples are legally married in Texas because in each case one spouse was born male.

To prohibit J'Noel from marrying a man or a woman, you'd have to overturn 80 years of constitutional law establishing a right to marry. You'd also have to explain at what point during the early 1990s, when Jay Ball was beginning to change his external physiology from male to female, you would have forced him, in the name of marriage, to divorce his then-wife.

Then you'd have to figure out what to do with the 275,000 to 2.5 million Americans who, according to a professor cited by the Kansas appeals court, were born with a sexually ambiguous combination of chromosomes, hormones, and genitals. In school, you were taught that girls are XX and boys are XY. In the appeals court opinion, you'll learn about people with XXX, XXY, XXXY, XYY, XYYY, XYYYY, and XO. You'll read about Klinefelter Syndrome, which can put breasts on boys, and Turner Syndrome, which can produce girls who lack internal reproductive organs. "What the district court said about J'Noel, that '[t]here is no womb, cervix or ovaries,' also could be true for a person with Turner Syndrome who had been identified as a female at birth," observed the Kansas Supreme Court.

According to GPAC and the ACLU, at the 1996 Olympics, "Of the 3,387 female athletes who underwent gender verification testing, eight tested positive for Y-chromosomal material." Seven of the eight had undergone surgery to clarify their gender. Nevertheless, "all eight were allowed to compete as women." Should such people not be allowed to compete in athletics as women? For that matter, should gender verification testing be extended to marriage? How many households are you willing to dissolve, and what tests are you willing to mandate, to make sure that all marriages are between what the Kansas Supreme Court called "a biological man and a biological woman"?

In different ways, Joe and J'Noel Gardiner wanted the same thing. They wanted Marshall Gardiner's money, and they wanted J'Noel's gender resolved. It looks like Joe will get the money. What J'Noel really wanted was the resolution. She can't have it. Neither can he.

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I liked this article because it posed the common sense questions that many of us were thinking.

"Believe in transsexuality"? I wasn't aware that I was a myth. Boo! Am I supposed to haunt closets, or pop out from under kids beds when the lights go off?

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Kitty Trauma Victim #123

[This message has been edited by Shadowcat (edited March 22, 2002).]

[This message has been edited by Shadowcat (edited March 22, 2002).]quote:

[Zahir]

Oh hell. I was hoping the Kansas SC would've done something other than the knee-jerk thing. But they didn't. Nor did they, evidently, come up with a simple set of rules (good or bad) with which people can deal.

Damn.

I'm not surprised, but...well, damn.

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"O let my name be in the Book of Love.
If it be there, I care not of
That other book Above...
Strike it out! Or write it in anew.
But let it be in the Book of Love!"
--Omar Kyam

[Dr.G]

The one simple rule I can see is to allow same-sex marriages, then this would not even have been an issue, or another one could be to respect the fact that gender identity takes precedence over what genitalia or what chromosomes one is born with, meaning Mrs Gardiner is a woman, no matter what her birthcertificate once said.

[This message has been edited by Dr.G (edited March 22, 2002).]

[heathergalaxy]

soooo basically me and my girlfriend *will* be able to get legally married because she would be considered "genetically male"... *rolls eyes* well that's lame, but it'll be great when us two dykes come in and want to be married and they'll have to let us....

i thought that they *didn't* want queer marriage... it's weird that we're one of the queerest queer couples we know, and we'd be able to legally get married...

kansas justices sure don't know what they want...

[Cipher]

quote:

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Originally posted by Dr.G:
The one simple rule I can see is to allow same-sex marriages, then this would not even have been an issue,

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Exactly. Or perhaps more specifically, marriage should be about the love and commitment two people have for each other and about a convenient way for society to be told about that commitment for various purposes like inheritance, medical decisions, and so on. What sex/gender the people happened to be "born with" or identify as is only relevant to the couple themselves and should have no bearing on the legal structure of marriage.

Thanks for posting the article(s), Shadowcat. It's a very good presentation of the issues this case (and the verdict) raises.quote:

[Kalita]

quote:

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Three years ago, a Texas court reached the same conclusion. Now two externally lesbian couples are legally married in Texas because in each case one spouse was born male.

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You gotta love the little loopholes like this. Really shows up how idiotic the whole mess is.quote: