Domestic Disputes

As love affairs go, the union of Marshall Gardiner and J’Noel Ball seemed familiar in its contours. He was a lively 85-year-old widower and former Kansas state legislator who made a pile in the stock market. She was half his age, an assistant professor of finance at his alma mater, Park College. Four months after they met they wed.

Just 11 months later Marshall succumbed to a heart attack, leaving behind no will and an estate worth nearly $3 million. Under Kansas law it should simply be split evenly among his spouse and heirs. But a private eye hired by Marshall’s estranged son Joseph to investigate the stepmother he hardly knew uncovered something surprising: before surgeries in 1994 and 1995, J’Noel was known as Jay Noel, a man. Joe Gardiner sued for control of the entire estate, claiming that the marriage was same-sex and illegal. J’Noel says their marriage was “more loving than any relationship I have ever experienced or seen,” and argued in a case heard by the Kansas Supreme Court recently that, as his widow, J’Noel is entitled to half Marshall’s assets.

A similar case is now working its way through a Florida court. In 1987 Margo Kantaras underwent hormonal treatment and surgery, emerging as Michael Kantaras. Michael later married and became an adoptive father to wife Linda’s son from a previous relationship, and together the couple had a daughter, who was artificially conceived using sperm provided by Michael’s brother. Linda says she was aware Michael was a transsexual when they married, but is now divorced and suing for sole custody of the children because, she says, her ex-husband is not truly male and is therefore unsuitable as a father. Michael, who is also fighting for custody, works three jobs to support Linda and the kids and says, “I love my children. I would never ever want [them] to feel that I would abandon them.”

The Gardiner and Kantaras cases underscore how quickly recent changes in American family life have outpaced the law, confronting courts with questions that were scarcely imagined just a few years ago. “Ozzie and Harriet and their kids exist, but they aren’t in the majority anymore,” observes University of Miami law professor Mary Coombs. “That is no longer the form in which most people live. The family structure has opened up.”

That broadened definition now includes not only divorced and single heterosexual parents raising their own biological children but also same-sex couples, adopted children and transgender partners and parents. Although no one keeps a precise count, at least 30,000 people have undergone “sex reassignment” surgery since it became widely available in the late 1970s. The law is trying to keep up. Most states now permit transgender persons to change their driver’s license and birth certificate to conform to their new status. And 39 cities–beginning with Minneapolis, Minn., in 1975 and now including Denver; Atlanta; Grand Rapids, Mich.; and Rochester, N.Y.–have passed nondiscrimination ordinances protecting transsexuals in schools, jobs and housing.

But legislating transsexuals’ personal relationships is completely new territory for American courts. Nearly every state still forbids same-sex marriage, but that’s where most lawmakers stop when it comes to answering the many sticky questions involving transsexuals. For instance, if everyone has a right to marry, then who are transsexuals entitled to wed legally? Persons who are opposite their old genders or their new ones? Who defines gender anyway, and can it be “changed”? For that matter, what is it that makes a man a man and a woman a woman–the physical equipment or something deeper? And how does that sense of identity affect their role as parents?

The courts will almost surely have to rule on the gender question in the Gardiner and Kantaras cases before they can decide who gets the estate or who gets custody of the children. Advocates have lined up on both sides. People with “gender-identity confusion have received a weird civil rights status, but it has nothing to do with civil rights,” says the Rev. Lou Shelton of the Traditional Values Coalition. “It’s not like the color of skin.” Responds Shannon Minter, an attorney and co-author of Transgender Equality: “When someone has undergone medical transition, there’s no reason not to recognize their new legal gender.”

The Kansas court is expected to rule in March, and the Florida court shortly after. For now, J’Noel Gardiner and Michael Kantaras have both gone back to their jobs, quietly hoping, no doubt, that the law will recognize who they are.

–With reporting by Steve Korris/St. Louis