Transsexuality on trial.

Transsexuality on trial.

Transsexuality on trial.

How you look at things.
March 20 2002 5:57 PM

The Trying Game

The mutual frustration of transsexuals and conservatives.

Illustration by Robert Neubecker

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.

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

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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?

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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 anatomy 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.