What's the Matter with Kansas and New York City? Definitional Ruptures and the Politics of Sex

"Nature loves diversity, society hates it." --Milton Diamond On September 25, 1998, Marshall Gardiner married J'Noel Ball, a professor of finance at Park College whom he had met at a fundraiser for his alma mater. Their relationship was a May-December romance as Marshall was forty-five years J'Noel's senior. According to Marshall's son, the 85-year-old "looked a little like Paul Newman," and he was "an eccentric ladies' man ... who loved beautiful women" (qtd. in Tresniowski, Kilse, and Sieder 75). Despite the difference in their ages, Marshall and J'Noel bridged their generational gap by discussing economics, working on their house together, and traveling. After a few months of courtship and several wedding proposals, J'Noel finally accepted Marshall's proposition. The following day, Kansas Supreme Court Justice Robert Davis, Marshall's close friend, married the couple in a private ceremony (Blackwood). On her wedding day, J'Noel could not have imagined that four years later Justice Davis and his colleagues on the Kansas Supreme Court would legally erase his matrimonial proclamation by unanimously voiding her marriage to Marshall. (1) J'Noel Gardiner's journey to the Supreme Court started on a plane to Baltimore. At the beginning of what would be their last trip together, Marshall suffered a heart attack and died in his wife's arms. Upon landing, J'Noel undertook the difficult task of informing Marshall's estranged son, Joe Gardiner, about his father's death. The call was difficult not only because of the subject matter, but also because J'Noel and Joe had never met each other, having only briefly spoken on the phone a few times. Upon meeting face-to-face for the first time at the funeral home, J'Noel's hesitation to provide her maiden name to the funeral director raised Joe's suspicions about J'Noel's past. Concerned about the division of the estate, Joe immediately hired a private investigator to run a background check on his stepmother (Tresniowski, Kilse, and Sieder 76). As the private investigator searched J'Noel's records, Marshall's family desperately searched for his will to assist them in planning his funeral. After days of searching it became clear Marshall had died without leaving behind a will. Thus, in accordance with Kansas law, Marshall's $2.5 million dollar estate would be divided equally between his wife and his son. Joe objected to this division of the estate given his reservations about his stepmother, and Joe's objections grew stronger after hearing an initial report from his private investigator. Among other things, the private investigator relayed to Joe that J'Noel's Social Security number had been issued to a man while her other official documents from the state of Wisconsin, including her birth certificate and driver's license, had been issued to a woman. Upon receipt of this news, Joe hired lawyers to challenge the division of the estate on the grounds that his father and stepmother's marriage was an illegal same-sex civil marriage. As the case worked its way through the trial and then appellate courts, first Joe and then J'Noel received favorable rulings. The parties asked the courts to determine whether or not, for the purposes of marriage, post-operative transsexuals should be legally recognized as their pre- or post-operative sex. (2) The judges charged with answering the seemingly simple question animating the controversy placed before the courts, "What makes a 'man' a 'man' and a 'woman' a 'woman'?", found no guidance in Kansas statutes. In 1980 the Kansas legislature prohibited the legal recognition of same-sex civil marriages. Sixteen years later, in the wake of the Federal Defense of Marriage Act, the Kansas legislature reaffirmed this commitment by barring the recognition of out-of-state same-sex civil marriages. However, neither statute provided any guidance on how to interpret the most basic of terms in the law, namely, how to define sex, man, and woman. …