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Kansas Supreme Court Selected Opinion Summaries
In Re: Estate of Gardiner, Docket 85,030
March 15, 2007

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.

RE: Appeal No. 85,030: In Re: Estate of Gardiner

Saying 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, the Supreme Court today ruled a post-operative transsexual may not inherit from the estate of a deceased "spouse," since the marriage is not recognized under Kansas law.

In a unanimous decision authored by Justice Donald L. Allegrucci, the Court held that the legislature intended to explicitly recognize that only traditional marriages are valid in Kansas. "A post-operative male-to-female transsexual is not a woman within the meaning of the statutes and cannot validly marry another man," Justice Allegrucci wrote for the court.

The ruling came in a probate proceeding in which Joseph M. Gardiner, the estranged son of Marshall G. Gardiner, a wealthy northeast Kansas businessman, challenged the right of J'Noel Gardiner, who had married Marshall Gardiner 11 months before his death, to inherit from his father's approximate $2.5 million estate. The Leavenworth County District Court declared the marriage void under Kansas law; however, the Court of Appeals reversed and remanded the case for a determination whether J'Noel was male or female at the time the marriage license was issued. The Court of Appeals directed the district court to consider a number of factors in addition to chromosomes.

In today's ruling by the Supreme Court, Justice Allegrucci said the legislature clearly viewed "opposite sex" in the narrow traditional sense. "The legislature has declared that the public policy of this state is to recognize only the traditional marriage between 'two parties of the opposite sex,' and all other marriages are against public policy and void," Justice Allegrucci wrote. "We cannot ignore what the legislature has declared to be the public policy of this state.

Our responsibility is to interpret K.S.A. 2001 Supp. 23-101 and not rewrite it. That is for the legislature to do if it so desires. If the legislature wishes to change public policy, it is free to do so; we are not. To conclude that J'Noel is of the opposite sex of Marhsall would require that we rewrite K.S.A. 2001 Supp, 23-101," he said.

Justice Allegrucci said the Court recognizes that J'Noel "has traveled a long and difficult road. J'Noel has undergone electrolysis, thermolysis, tracheal shave, hormone injections, extensive counseling, and reassignment surgery. Unfortunately, after all that, J'Noel remains a transsexual, and a male for purposes of marriage" under Kansas law. "We are not blind to the stress and pain experienced by one who is born a male but perceives oneself as female. We recognize that there are people who do not fit neatly into the commonly recognized category of male or female, and to many life becomes an ordeal. However, the validity of J'Noel's marriage to Marshall is a question of public policy to be addressed by the legislature and not by this court," he concluded.