By Elaine Cassel
When Joe Gardnerís 85-year-old father died in 1999 without a will, meaning that he and his fatherís 40-year-old wife would equally divide his fatherís $2.5 million estate, Joe set out to find a way to get it all for himself. He did not know how easy it would be until he found out that his father had married a man.
Actually, Marshall Gardiner had married a woman, JíNoel Ball. Or at least she was a woman when he married her. Through some crafty investigation, son Joe learned that JíNoel was transgendered. Diagnosed with gender dysphoria disorder, JíNoel had undergone sex reassignment treatment and surgery in 1994 to change her biological sex (male) to her identified gender (female). She changed her name from Jay to JíNoel and obtained a new birth certificate under Wisconsin law (the state of her birth, and one of 20 states that provide new birth certificates upon sex reassignment surgery) that identified her by her new name and sex. JíNoel married Marshall in 1998.
Joe contested the will in Kansas, where Marshall Gardiner lived with his young wife. He alleged that his father had been defrauded and did not know he was marrying a transgendered man. More importantly, since Joe could not prove that Marshall was a victim of JíNoelís fraud, he alleged that under Kansas law sex reassignment surgery did not change the legal fact: a person born a man or a woman will be a man or a woman forever. And since same-sex marriages are not recognized as legal marriages in any state (though Vermont recognizes same-sex unions, it does not grant them the same legal status as marriage), Marshall Gardiner could not have been legally married to JíNoel. Thus, Joe would inherit all of his fatherís wealth.
The Kansas court agreed with Joe. Its opinion shows a lack of understanding of the distinct concepts of sex and gender. Sex is a biological construct, determined in utero according to chromosomes that control the development of external and internal sex characteristics. But gender is a psychological construct. It is an intimate part of our self-concept, developed between the ages of two and five, in which we either identify with our biologically determined sex or, in rare instances, reject it and insist that there is a boy or girl trapped in the body of the opposite sex.
The DSM-IV diagnosis of gender dysphoria disorder (sometimes referred to as gender identity disorder) involves a rejection of oneís biological sex and an intense desire to actually be the other sex. Gender dysphoria disorder does not refer to a boy being "effeminate" or a girl being a "tomboy." Rather, the sufferer actually identifies him- or herself as the opposite of their biologically determined sex.
The Kansas court, however, misses that distinction between oneís biologically innate sex and oneís gender. It ruled that oneís gender is fixed by the "Creator" at birth, and cannot be changed by a physicianís scalpel. Once having found this, the court said that the marriage was invalid from the outset and that son Joe was the beneficiary of his fatherís entire estate.
The decision indicates the gap between the law and psychology. Even though psychology and medicine recognize and treat gender dysphoria disorder, many states refuse to legally sanction the sex change, forcing transgendered people who undergo the ultimate treatment--painful surgical sex reassignment and life-long hormone treatmentóto live in legal limbo. JíNoel is a biological female (by virtue of her sex reassignment surgery) and a psychological female (as a result of her gender dysphoria). But, under the law of Kansas and other states, she is still Jayóin JíNoelís body.
You can read the full text of the courtís opinion at:
Elaine Cassel, Marymount University and Lord Fairfax Community College