Archive for Wednesday, March 20, 2002

Kansas Supreme Court rules in favor of Leavenworth resident

March 20, 2002

The Kansas Supreme Court wasn't ready to be the authority on the legal status of transsexuals, referring that decision to state legislators.

On March 15, the Supreme Court ruled a statute dealing with same-sex marriages did not address transsexuals. Therefore, it was up to the Legislature to decide their legal status.

The court's decision will keep a widow, who is a transsexual, from inheriting her late husband's fortune.

The ruling was handed down in the probate case concerning the $2.5 million estate of Leavenworth stockbroker Marshall Gardiner.

Gardiner died in August 1999, without a written will.

A legal battle ensued over whether his widow, J'Noel Gardiner, was entitled to half of her late husband's estate.

Marshall Gardiner's son, Joe, a Leavenworth resident, argued he should inherit the entire estate because J'Noel Gardiner used to be a man. J'Noel Gardiner was formerly Jay Noel Ball. In 1994, Ball, then a man, had a sex change operation in Wisconsin.

Following the operation, the Wisconsin courts allowed Ball to have her birth certificate amended, recognizing her as a woman.

Although the Supreme Court ruled the issue needed to be addressed by legislators, the court did say "a post operative male-to-female transsexual is not a woman within the meaning of the statutes and cannot validly marry another man."

It remains undecided whether J'Noel Gardiner will appeal the decision to the United States Supreme Court.

Her attorney, Sanford Krigel of Kansas City, Mo., said a decision will be made in the coming weeks on whether to file an appeal.

"We're very disappointed with how the Kansas Supreme Court ruled," Krigel said.

"I think this is going to be perceived negatively, if not today then in the next 10 to 15 years," he added.

Joe Gardiner's attorney, John Thompson of Leavenworth, said the Supreme Court's ruling was within expectations.

"It is the fundamental legal precept that the courts do not make law. That is the job of the Legislature," he said.

Thompson said his client would now have control over the late Gardiner's estate.

The United States Supreme Court is unlikely to hear to the case on appeal, Thompson said.

"The law and the courts have made it clear that this area is one for the individual states to handle, and I would predict that the United States Supreme Court will not review a decision of the Kansas Supreme Court on this issue," he said.

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