A Woman Scorned
Marshall Gardiner’s breath was a horse’s snuffle. The 86-year-old man’s eyelids fluttered as his irises rolled toward the ceiling of the plane.
“Are you okay?” J’Noel Gardiner asked a stupid question. Clearly, her husband was not. “Are you okay?”
Marshall seemed to hear the repeated question and recovered long enough to smile and nod. Then another seizure convulsed him. J’Noel called for a flight attendant, and two of them trained in first aid came with oxygen. Another phoned emergency crews at the Baltimore airport, fifteen minutes away.
One flight attendant held Marshall’s wrist, finding a pulse. But on his neck, J’Noel’s fingers felt nothing. His neck. It was at a funny angle, cocked to one side with Marshall sprawled across two seats. He needed to be spread out in the aisle. J’Noel looked at the two small women.
“Stand back,” she said.
Then she heaved Marshall, 45 years older and six inches shorter than she, up from their cramped row of seats and over the rigid armrest. Gently, she laid him down in the narrow aisle. J’Noel reached for Marshall’s neck again and located a final pulse. His wrist no longer throbbed. The flight attendants started CPR. In the harried minutes that followed, Marshall was passed to the airport paramedics and then to Baltimore’s North Arundel Hospital, four miles away.
J’Noel took a cab. She didn’t want to crowd the paramedics in the ambulance. While the emergency-room doctors labored over her husband, J’Noel waited alone. The nurse said things didn’t look good and offered to help her make phone calls; J’Noel called Marshall’s brother and son. Eventually, the nurse escorted her to the trauma room. The trauma was over. Marshall Gardiner’s body lay on a gurney beneath an umbrella spotlight, surrounded by the electronic equipment that had failed to revive his aged body. A tube protruded from his mouth.
J’Noel looked at Marshall for a minute. Then she crawled onto the gurney with him. It was her last gesture, a thank you to the man who had loved her and made her, finally, a woman. Mrs. Marshall Gardiner.
It would be her last moment of peace.
The love story of Marshall and J’Noel Gardiner is recorded not in poetic verse or emotional diary entries but in depositions mediated by attorneys whose questions were designed to discredit the couple’s marriage. The relationship has drawn the kind of scrutiny only the legal system can generate, provoking a brand of publicity People magazine and the syndicated “News of the Weird” love to provide. There was a reason J’Noel could manhandle her dying husband on the plane: She was once a man.
When Marshall Gardiner died, he left millions of dollars but no will. Under Kansas law, half of his estate should have gone to his wife. But Marshall’s son, Joseph, has been fighting to receive all the estate’s proceeds, arguing that his father’s marriage was illegal in Kansas.
Judges have ruled for both sides. In January 2000, Leavenworth County District Judge Gunnar Sundby determined that, despite her sex-reassignment surgery, J’Noel remained a man, nullifying her marriage to Marshall. That decision awarded the entire estate to Joe Gardiner. But in May, the state appeals court reversed that decision, saying the marriage was valid and that J’Noel was a widow who deserved her half. Joe Gardiner appealed.
When the Kansas Supreme Court weighs in on the matter after a December 4 hearing, the decision could have a profound impact on the legal rights of transsexuals throughout the United States.
J’Noel declined to speak to the Pitch for this story, citing concern that the publicity could hurt her chance for a fair hearing. But she has told her story in sworn depositions, and the court file contains hundreds of pages of details, including medical records describing exactly how her penis was removed and the skin restitched to create a vagina (and the kind of douche she used to help it heal). The file also offers insights into the emotional nature of J’Noel and Marshall’s relationship. Legal briefs also have been filed by attorneys for both sides arguing about whether J’Noel’s surgeries actually changed her sex.
J’Noel and Marshall met in May 1998 at a Park University Founders Day reception at a house north of the river. Marshall had earned an invitation because of his donations to his alma matter — more than $200,000 by some estimates; J’Noel was an instructor in the business department at the college. While other guests snacked on hors d’oeuvres, Marshall and J’Noel introduced themselves and chatted about investments. J’Noel, then 40, taught finance. Marshall, 85, had finances.
The next Monday, Marshall called J’Noel and asked her to a banquet Friday night at the Hyatt. He was, J’Noel said in her deposition, “affable and charming,” representing the best of his chivalric generation. Remembering that night more than a year later, J’Noel couldn’t help smiling, even while answering questions for attorneys.
Marshall was born on September 27, 1912, in Oskaloosa, Kansas, to Emmet and Alice Gardiner. When Marshall was eight, Emmet Gardiner moved his family to Leavenworth, where he wrote for the Leavenworth Times and served as postmaster. Marshall Gardiner grew up to write for the newspaper as well. He married Molly North in 1942, and together they reared their one son, Joseph M. Gardiner III. Marshall joined the Army during World War II, then moved his family to a hillside brick house on Olive Street. He later entered politics and was elected to the Kansas House of Representatives in 1956, where he served four years. He also chaired the Kansas Democratic Party and lost a bid for the U.S. House of Representatives.
He ultimately became a stock broker, though by the time J’Noel met him Marshall was tending only his own portfolio. He had done well. At his death, his estate was valued at $2.4 million — $285,730 in property, including the Olive Street house, and $1.8 million in investment holdings that included 2,400 shares of Intel stock, 6,000 shares of Nissan, 4,000 shares of IBM and 100 shares of Payless Cashways.
Despite his financial stability, Marshall clung to the spending habits he’d acquired during his Depression-era upbringing. “He was very tight with his money,” says his friend Vincent Toro, who began renting an auto-repair garage from Marshall in 1986. Toro says Marshall never installed air conditioning in his house, instead sweating out the hottest summer days at the library, where he read free newspapers rather than subscribe.
Many mornings found him volunteering at the Dwight D. Eisenhower Veterans Affairs Hospital in Leavenworth, directing patients to exam rooms or pushing their wheelchairs through the building. “Everybody said he really was a big-hearted man,” says hospital spokesman Jim Gleisberg. “He was just kind and helpful to everybody.” But Marshall’s well-timed labor also netted him free lunches.
Other days he would coax a lunch invitation from Toro. “He loved the [Burger King] Whoppers,” Toro remembers. But no fries and no Coke; Marshall would suck down a few cups of free coffee instead. They made an odd pair — Toro, the Guatemalan immigrant with three young children, and Marshall, the aging widower who lived alone and drove the few blocks of his daily circuit in a 1986 Nissan 300ZX with a personalized license plate reading “1000000.”
Marshall had outlived Molly, who died in 1984, and most of his friends. His son had fled the Midwest, giving up the auto-repair business he had run from what is now Toro’s garage. Father and son stayed in touch, but just barely.
Marshall did not wallow in loneliness. He was a flirt, chatting up the Burger King cashiers and anyone else who crossed his view. “It didn’t matter who was in front of him; he would talk,” Toro says. “He was very, very, very sharp.”
J’Noel was born Jay Noel Ball on May
November 4, 1957, in Green Bay, Wisconsin. His father was a railroad worker, and Jay spent his boyhood bouncing between Midwestern and southern towns such as Duluth, Minnesota; Omaha, Nebraska; Pearlington, Mississippi; and Crossett, Arkansas. He started school in Park Ridge, Illinois, and graduated from a parochial high school in Bay Saint Louis, Mississippi, in 1976.
From there Ball went to business school at the University of Southern Mississippi, earning a bachelor’s degree in 1980 and an MBA the next year. He attended a year of law school before heading to the University of Georgia in 1984, graduating with a Ph.D. in business in 1987.
The education didn’t assuage Ball’s belief that he had been born with a “birth defect” — a penis and testicles. “I knew something was wrong from my earliest memories, prepuberty,” J’Noel testified in her September 1999 deposition. “Knowing that I was female, but having male genitalia.”
Despite that knowledge, Ball lived for eight years with a woman named Sandra Parker, then married her in August 1988. They moved to Boston, where Ball had landed a job as an assistant professor of finance at Northeastern University.
Ball began “transitioning” in 1991. In his hours away from the university, he started wearing dresses. He grew the hair on his head long and paid to have the hair on his neck, face and chest removed. He pierced his ears, painted his nails. He began using other names in public — Joan Ryder, J’Noel Ball. He started taking estrogen.
Sandra Parker, a lab technician at Northeastern, won’t talk now about her ex-husband, but she must have had some tolerance; J’Noel has said that the two would pick out women’s clothing together, and they have stayed in touch.
The changes created a buzz at Northeastern, where Ball was nearing his tenure review. And they drew at least one violent outburst when a patron of the Marriott Hotel bar in Newton, Massachusetts, punched the cross-dressing Ball in the face and called him a “queer bag of AIDS.” Ball refused to press criminal charges, fearing the publicity would hurt his chance to earn tenure. A civil court, however, awarded Ball a couple thousand dollars.
Ball was denied tenure in 1993. The finance department’s faculty had supported his application, but Ball lost the recommendation of a committee representing the entire college of business. Ball was told he had not published enough papers, though friends said the denial had more to do with the length of his fingernails than that of his bibliography.
Northeastern’s Joseph Meador, a business professor who supervised Ball’s department, tells the Pitch that he was sorry to see Ball go. Meador says Ball generally was well-liked by students and respected by his colleagues for his teaching. “Overall, the faculty was very supportive and tried to help [Ball] through that transition in every way possible,” Meador says.
Ball lost his opportunity for tenure, but he also lost the need for subterfuge in his journey to womanhood. He had a tracheal shave to make his voice more feminine and, with the advice of a psychiatrist, began talking about more significant surgery. That was where Sandra drew the line. The judge who handled the separation required little explanation as to why the couple was divorcing: Ball and Sandra both arrived at the 1994 hearing wearing women’s clothing.
A few months later, Ball traveled to Neenah, Wisconsin, to have his testicles removed. (He also had his forehead and eyebrows lifted and his nose fixed.) Later, on August 1, 1994, Dr. Eugene Schrang cut and inverted Ball’s penis, using part of the skin to build a vagina, labia and clitoris.
The medical records copied for the Kansas court file include details of the operations and their follow-up. Now calling himself J’Noel, Ball voiced no second thoughts at the time, thanking the doctor for his work and bragging about having had sex with a man who didn’t know the “J” in J’Noel stood for Jay.
J’Noel pursued less bloody, more bureaucratic changes as well. J’Noel’s native state was surprisingly friendly to transsexuals. For $20, an applicant could file a form called a “Report of Order to Change Name and Sex on Birth Certificate Due to Surgical Sex-Change Procedure” with the Wisconsin Department of Health and Social Services. J’Noel’s mother filed the forms in Outagamie County, and on September 26, 1994, the department issued J’Noel a new birth certificate.
According to Judge Michael W. Gage of Outagamie County’s Branch V, a man named Jay had become a woman named J’Noel. In the ensuing weeks, J’Noel changed her driver’s license, university transcripts and passport. One of J’Noel’s professors from Georgia discreetly spread the word in academic circles to prevent J’Noel’s having to explain herself if she ran into former colleagues.
The creation of J’Noel required six surgeries (including cheek implants in 1995) and cost tens of thousands of dollars. Having lost her $63,000-a-year faculty position at Northeastern when her contract expired in the spring of 1995, J’Noel relied on her retirement account for funding and took an adjunct teaching position at Daniel Webster College in Nashua, New Hampshire, making only $6,000 in 1996. Then Park University called, offering J’Noel a job as assistant professor of finance.
The relationship between J’Noel Ball and Marshall Gardiner evolved quickly in the weeks after that Founders Day encounter. They took an afternoon drive to Smithville Lake. They visited the cemeteries in Winchester and Oskaloosa where Marshall’s family members are buried. They played cards and talked about investments.
To others, Marshall referred to J’Noel as his financial advisor, his driver. But he wanted her to be more. According to J’Noel, Marshall asked her to marry him on their fourth or fifth date.
“You’re crazy,” she replied.
Marshall pressed the point as they continued to see each other several times a week. “It’s so soon. You don’t know me,” she told him. But her resolve weakened. It wasn’t a traditionally romantic courtship; there were no cut roses or jewelry. Instead, Marshall would show up at the door with wall hangings or tea sets, things from a thrift shop or the Fort Leavenworth Army Base commissary. In her deposition, J’Noel remembered the ribbing she got from friends: “Has Marshall given you any gifts lately? Another case of tomato paste, another case of tuna fish?”
In July, J’Noel told Marshall she would consider a wedding, but first they had to travel together “so we could get to know each other more.” J’Noel reserved a time-share in St. George, Utah.
That month, as the two played Scrabble at J’Noel’s house, she found the courage to initiate the conversation she’d been dreading. She said she had something to tell him that was extremely confidential, a secret that could ruin her, could get her fired from Park. She said she’d had “sexual reassignment surgery.” She stammered to explain, but Marshall caught it the first time.
“So you had a sex change,” he said, dismissing it like he might brush off a wartime affair. “We both have histories. You are and I am our mass apperceptions.”
Some time after the Utah trip the couple began to look for a house they could share. Marshall never accepted visitors — including J’Noel — at his Leavenworth home. They made a couple of offers before finding their dirt-road retreat tucked in the hills a few miles northwest of Parkville. The house was valued at nearly $200,000. Marshall wrote a check.
The prenuptial agreement was J’Noel’s idea. She told attorneys she had wanted Marshall to know she was not marrying him for his money and that she wanted to prevent her family from making a claim to his estate if the couple were to die together. Marshall procrastinated; finally, with nagging, he produced a fill-in-the-blank contract. But he wouldn’t fill in the blanks. On July 14, 1998, J’Noel scribbled a few things on a page, reporting assets of $5,000 in cash and $52,000 in retirement-fund savings and a $12,000 student-loan debt. Two days later, Marshall picked up a marriage license at the Jefferson County Courthouse in Oskaloosa. He guessed at the information required for J’Noel. He missed her birthday by ten days and said her mother’s name was “not known.”
The couple took another trip, driving to Vail, Colorado, to spend a week at another time-share. The road trip was the clincher for J’Noel. “I am not a nice person when I’m in a car for many hours,” she said. Marshall not only survived, he “thrived.” After the second trip, J’Noel accepted Marshall’s proposal.
“I know he tried many ways, and I do recall looking into his eyes and saying that he would never leave me voluntarily. That’s when I knew,” J’Noel remembered later. “Marshall was of the generation where marriage meant forever.”
Frustrated with Marshall’s disinterest in the prenuptial agreement, J’Noel composed a paragraph of her own and signed it on September 19, 1998. “I, J’Noel Ball, do now and forever waive, deny, and reject any property interests, real or chattel, of Marshall G. Gardiner.”
She said later that she’d meant it to apply only during their engagement, that she had expected to revisit the issue after the wedding, which came only six days later. Marshall wasn’t that interested in the agreement, J’Noel said. He said they would “throw in together.”
J’Noel and Marshall were married September 25, 1998, in the Oskaloosa courthouse. The guest list was short, initially including only Carol Getty, a member of the Park University faculty. (At J’Noel’s request, Getty declined to talk to the Pitch about her friend.)
Attorney Jim Swoyer was a late addition to the wedding party. Swoyer’s office is across the street from the courthouse. Swoyer tells the Pitch he remembers the invitation from his old friend Marshall, who barged in unannounced saying, “Counselor, I’ve got a job for you.”
Swoyer, a lifelong acquaintance of Marshall’s who is married to a niece of President Harry Truman, says it was a typical short-and-sweet civil ceremony. J’Noel struck him as young, with a flowered dress and a bouquet. But Marshall and his bride seemed compatible. “I kind of took it they had been friends for some time,” Swoyer says. Actually, it had been only four months.
Two days after the wedding, Marshall called his son to tell him the news. It was Marshall’s birthday. Fifty-year-old Joe Gardiner later remembered being introduced to his “new mother” over the phone.
“J’Noel seemed to be extremely nervous, that she didn’t want us to believe that she had married my father just for his money, so she brought up the topic of the prenuptial,” Joe Gardiner said in his own deposition. “And my father explained that what was hers was hers and what was his was his regardless of the outcome of the marriage.”
People who saw the two together say the marriage was a good one.
Marshall’s cousin Charles Pearson, of Wichita, Kansas, had dinner with the couple. “It was something of a surprise,” Pearson tells the Pitch. “We thought she was a very pleasant person, and we thought she was good to Marshall…. He liked to travel. He needed a traveling companion, and she was a good one.”
Joe Gardiner’s impression was similarly positive. He could sense a change in his father based solely on their phone conversations. “I think he was happier with his own life,” he told attorneys. “I don’t know whether that’s through J’Noel or not….”
In depositions, when J’Noel’s attorney, Sanford Krigel, asked Gardiner to explain how he knew his father had been happier, Gardiner said Marshall “wasn’t nearly as depressed.”
“How could you tell?” Krigel asked.
“By the tone of his voice, the pattern of his speech, the words he selected in communicating his thoughts.”
Marshall also communicated those thoughts with gifts — some of them were even splashier than tree saplings or dog food. He bought J’Noel a 1986 Nissan 300ZX to match his own, titling it in her name. And the couple hosted two parties, odd gatherings of university people and Leavenworth residents, that were short on refreshments. “They had a piece of meat this [small], two packages of hot dogs,” Toro remembers. But Marshall bragged to Toro about his wife, how smart she was, how well she kept house.
Marshall and J’Noel stayed busy during their eleven months of marriage. Marshall would stay at his Olive Street house a couple of nights a week to sort through mail and visit friends. But they settled in together at the house they shared northwest of Parkville, buying colorful guinea fowl to wander the grounds. They planted fruit trees. And they had sex.
Their first time was in Utah. They tried Viagra a few times but stopped after learning the drug might react adversely with Marshall’s heart medication. It left Marshall frustrated at times. “I wish I could do more for you than just leave you a rich widow,” J’Noel claimed he told her. “Don’t talk like that,” she replied. “You make me very happy.”
On August 12, 1999, the day Marshall died, J’Noel caught a flight back to Kansas City. Joe Gardiner and his wife, Joy, flew in the next day from Cleveland, Georgia. They stayed with J’Noel. It was the first time she had met her stepson face-to-face; it was only the second time Joe Gardiner had been to Kansas City in the last decade. (The other time had been in 1997, for the dedication of a science lab Marshall had helped fund at Park University.) Like J’Noel, Joe Gardiner declined to speak to the Pitch.
Marshall and his son talked regularly, but they were not close. Joe Gardiner was diagnosed with manic depression in the mid-’80s, shortly after the death of his mother and before he left Leavenworth. He took Lithium for about a year following the diagnosis, but in 1990 his condition worsened. Gardiner complained of numbness from the waist down and was confined to a wheelchair, though orthopedic surgeons and neurologists were unable to explain the problem. Gardiner wondered whether the paralysis was connected to his mental health. He was able to walk again six years later.
While his father was watching his own investments grow, Gardiner and Joy struggled to live on her salary, Gardiner’s monthly disability payment and his occasional commission for designing a Web page. Once in a while, Gardiner would ask his father to make up the difference. In 1998, Marshall sent his son $2,100 for a computer, $1,500 to buy false teeth for Joy and another couple hundred dollars at Christmas. When Gardiner used a wheelchair, Marshall sent $5,000 for a van that would accommodate a wheelchair lift.
J’Noel told attorneys that Marshall had lost patience with his tormented son. “Marshall was a very loving man,” she said. “But he was disappointed that Joe was not able to make his way in the world, and he was disappointed that he had continued to give Joe money, and he told me, ‘He’s gotten all the money he’s going to get out of me.'”
Together, J’Noel, Joe and Joy Gardiner and J’Noel’s friend Carol Getty visited the funeral home, then went to Marshall’s Olive Street house.
Later, they would give differing accounts of the reason for the trip.
Joe Gardiner remembered that J’Noel was strangely insistent that they go immediately, that there were photos she wanted to retrieve. J’Noel refused her stepson time enough for a cigarette and Coke, he said.
J’Noel said that the people at the funeral home had asked her to go, that they wanted to know if there was a will with instructions on how to handle Marshall’s remains.
But everyone was disturbed by the condition of the house, which Joe Gardiner hadn’t seen in fifteen years and J’Noel had never entered; she’d driven by only once. The rooms were crowded with the accumulations of a pack rat who had cleaned little since the death of his first wife.
J’Noel found Marshall’s office and sat behind his desk looking through papers. She came up with nothing. No photos and, more important, no will.
The absence of a will was remarkable given Marshall’s business acumen and his own role as executor for two estates. “Marshall was a sophisticated business person. He was familiar with probate,” Gardiner’s attorney, John Thompson, says. “Marshall knew the significance of having a will.”
Joe, Joy and J’Noel rifled through the house. Joe and Joy later searched the eighty bags of trash a hired hand had eventually filled. They called the Judge Advocate General’s office at Fort Leavenworth and contacted Marshall’s friends but learned nothing.
Maybe Marshall knew Kansas law well enough to understand that half his estate would go to his spouse and half to his children. Marshall was egotistical; perhaps he refused to acknowledge his own mortality. “Maybe he just didn’t get around to it,” Thompson says. “I don’t think there was a stone unturned … to find the will, but we never found one.”
But Joe and Joy Gardiner returned to the house on August 18 and discovered one of Marshall’s briefcases. Inside were the partially completed prenuptial agreement and the waiver J’Noel had signed before the marriage.
These documents changed everything. Thompson, who had been dealing with both J’Noel and Joe, advised J’Noel that she needed to find her own attorney. “It became clear there were going to be issues in the administration of the estate,” Thompson says. They filed a motion with the probate court, asking that Joe Gardiner be named executor of the estate.
Confronted with the waiver at Thompson’s office, J’Noel seemed to admit defeat. Joy Gardiner remembered J’Noel’s saying, “I guess that’s it. Checkmate. You win.” Then she asked for mercy and the Missouri house, which she said Marshall had meant for her to have. Before she left, Joy testified, J’Noel said, “Oh well. I guess I’ll have to move out, sell the car, the piano, and kill the guinea hens.”
Thompson tracked down two other people who recalled discussions of a prenuptial agreement. Toro remembers Marshall’s talking about how J’Noel had been the first woman to accept his “conditions.” “What’s mine is mine. What’s hers is hers,” Toro says.
Marshall’s friend Bruce McDonald, who has since died, remembered similar comments, according to an affidavit he signed. But McDonald, a retired doctor, raised more significant questions. It was McDonald who first suggested that J’Noel was not what she appeared. Hadn’t Joe Gardiner noticed J’Noel’s big hands? Her broad shoulders? Her forearms? Her Adam’s apple?
Joe Gardiner asked Thompson to hire a private investigator. Thompson says the investigation was not solely driven by suspicions about J’Noel’s sex. “He [Joe Gardiner] does have a fascination with his father. He really wanted to know more about the woman his dad married,” Thompson says. “I think there was a curiosity about J’Noel. What kind of person are we dealing with?”
Having uncovered J’Noel’s secret, Joe Gardiner changed his court pleading. He argued that his father’s second marriage was not valid because state law says marriage is “a civil contract between two parties who are of opposite sex. All other marriages are declared to be contrary to the public policy of this state and are void.”
He also offered J’Noel what Thompson calls a “substantial” amount of money to go away. It was a critical moment. The story had not shown up in the media — and wouldn’t until a few months later — and hadn’t hit gossip circles at Park University.
J’Noel chose to fight for her rights as a wife. She filed a counterargument with the court, claiming that Kansas was bound to recognize the Wisconsin court order that changed her sex to female on her birth certificate just as it would honor a Wisconsin driver’s license or business contract.
Before the district court made its ruling, Gardiner was awarded $100,000 in cash, Marshall’s Nissan and $3,000 to help fix up the Olive Street house, where he and his wife now live. District Court Judge Gunnar Sundby did not duck the most controversial issue, ruling in favor of Gardiner in January 2000 not because of J’Noel’s prenuptial waiver, which held disputed facts, but because J’Noel had been born a male and remained male under Kansas law.
“Some physicians would consider J’Noel a female; other physicians would consider her still a male,” Sundby said in his ruling. “Her female anatomy, however, is still all man-made. The body J’Noel inhabits is a male body in all aspects other than what the physicians have supplied.”
But the ruling was overturned by a federal appeals court. In that ruling, the three-judge panel referred to a number of sexual abnormalities, ranging from the relatively simple — as when parents choose to raise their baby boys as girls or vise versa — to the complex chromosomal problem that causes the clitoris to resemble a penis, keeps internal sex organs from forming and prompts the growth of facial hair and breasts. The judges cited an inherited condition, found most commonly in the Dominican Republic, which causes male children to resemble girls until puberty, when testicles drop and a penis grows. And they referred to two documented cases in which a boy’s penis was mangled at an early age. In each circumstance, the boy was “changed” into a girl, a decision that proved traumatic at puberty. The judges also cited a medical study showing that the brains of male-to-female transsexuals had characteristics similar to the brains of women.
But the list of precedent cases is surprisingly short.
In 1977, the New York appellate court had heard the case of Renee Richards, a male-to-female transsexual who wanted to play in a women’s tennis tournament. Richards had sued the U.S. Tennis Association, which was requiring her to take a special test. The court found the test discriminatory.
In 1984, the 7th circuit ruled against a male-to-female transsexual who had been fired from her Eastern Airlines pilot’s job after surgery. The court said that federal civil-rights law protects men and women — but not transsexuals — from discrimination because of their sex.
In 1987, an Ohio probate court judge ruled that state law did not allow birth certificates to be changed for male-to-female transsexuals.
And in 1999, a Texas transsexual lost a medical malpractice suit as a surviving spouse of a male patient. The court voided the transsexual’s marriage, using the “man made” argument Judge Sundby repeated.
Taking these into account, in May 2001 the Kansas Court of Appeals said the issue of a person’s sex is more complicated than a person’s chromosomes at birth. The court offered eight different criteria that could be used to determine sex: “gonadal sex, internal morphologic sex, external morphologic sex, hormonal sex, phenotypic sex, assigned sex and gender of rearing, and sexual identity.”
Gardiner’s attorneys requested a review by the Kansas Supreme Court, arguing that the appeals court had overstepped its bounds by creating a law saying that a person could change his or her sex and by inventing the eight-point test. “It is unclear whether surgery is even required under the test articulated by the court of appeals,” Gardiner’s attorneys wrote. “The eighth factor is totally subjective…. It is possible that a biological male who merely announces that he feels ‘female’ one day could be found to be female for purposes of marriage.”
On Tuesday, December 4, at a hearing in Topeka, the seven-member Kansas Supreme Court will be asked to decide on the validity of J’Noel Ball’s marriage to Marshall Gardiner.
It was a marriage that had been performed by a Kansas Supreme Court judge in the first place. Justice Robert Davis’ father, Homer Davis, had been a friend and attorney to Marshall. Davis has recused himself from considering the pending case, and Shawnee County District Judge Marla Luckert will sit in his place.
Like the brief legal proceeding that joined Ball and Gardiner, the December 4 hearing will also be short. J’Noel’s attorney will have twenty minutes to make a final plea on her behalf and answer questions from the justices. Then Joe Gardiner’s attorney will have the same opportunity. They’ve already made their arguments in the briefs they’ve submitted. A ruling is expected on January 25, 2002.
The case is being followed nationally. In hopes of swaying the outcome, several groups have filed supporting briefs with the Kansas Court of Appeals, including the American Civil Liberties Union of Kansas and Western Missouri; the Lambda Legal Defense and Education Fund of New York; the Thomas More Center for Law and Justice of Ann Arbor, Michigan; and Gender Public Advocacy Coalition, a gender-rights organization based in Washington, D.C.
Riki Wilchins, executive director of Gender PAC, says that whatever its outcome, the case is likely to be a landmark in the continuing discussion of gender issues.
A Kansas Supreme Court ruling in J’Noel’s favor would be a significant step away from traditional definitions of sex and gender, helping undo the damage left by the Texas case, Wilchins says. “Texas is already setting a very discriminatory and narrow standard, holding that sex equals chromosomes,” she says.
Whether J’Noel — who does not yet have tenure at Park University — can expect the benefit of that movement probably won’t be decided for some time.
If J’Noel wins, Gardiner’s attorney will likely ask a lower court to reconsider whether J’Noel’s waiver and incomplete prenuptial agreement are binding.
If Gardiner wins, J’Noel could ask for a hearing by the U.S. Supreme Court or find another issue to debate at the district-court level.
Or J’Noel and Gardiner could easily follow the path of less-provocative litigation such as a $2.25 million trust case first filed thirteen years ago, which has been to the Kansas Supreme Court four times and will be heard again the same day J’Noel’s attorneys present her case. Unless J’Noel and Gardiner agree to settle, the volleys could continue indefinitely, with legal bills eating up shares of Marshall’s IBM stock.
For Joe Gardiner, the battle seems simply to be about money. For J’Noel, it’s not only about the material comfort Marshall’s estate might offer. It’s about what his marriage proposal validated: her womanhood.
