No. 00-85030-A
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
IN THE MATTER OF THE ESTATE OF
MARSHALL G. GARDINER, Deceased
BRIEF AMICI CURIAE OF THE
GENDER PUBLIC ADVOCACY COALITION AND THE AMERICAN
CIVIL LIBERTIES UNION OF KANSAS AND WESTERN MISSOURI
IN SUPPORT OF APPELLANT J'NOEL GARDINER
Appeal From the District Court of Leavenworth
County,
Kansas, Honorable Gunnat A. Sundby, Judge
District Court Case No. 9908PE110
Lisa Nathanson
(Bar No. 10759)
AMERICAN CIVIL LIBERTIES UNION
OF KANSAS AND WESTERN MISSOURI
3601 Main Street
Kansas City, Missouri 64111
(816) 756-3113
Doni
Gewirtzman
LAMDBA LEGAL DEFENSE
AND EDUCATION FUND, INC.
120 Wall Street, Suite 1500
New York, NY 10005
(212) 809-8585
TABLE OF CONTENTS
I.
BY FIXING A PERSON'S SEX DESIGNATION AT HIS OR HER BIRTH, THE
TRIAL COURT'S DECISION CONFLICTS WITH EXISTING KANSAS LAW GOVERNING VITAL
RECORDS
II.
THE TRIAL COURT'S RELIANCE UPON CHROMOSOMES AND INTERNAL ORGANS TO
REDEFINE MS. GARDINER'S SEX FAILS TO RECOGNIZE THE COMPLEXITY OF SEXUAL
IDENTITY, AND NULLIFIES THE REALITY OF HER LIFE AND MARRIAGE
A.
The Trial Court's Decision To Use Chromosomal Sex As A Primary
Determining Factor In Establishing Ms. Gardiner's Legal Sex Is Not Supported By
Prevailing Medical Knowledge
B.
Disproportionate Reliance Upon Anatomy At Birth Presents Similar
Problems
III.
LEGAL RULINGS SHOULD BE CONSISTENT WITH SCIENTIFIC DEVELOPMENTS
AND SOCIAL REALITIES
TABLE OF AUTHORITIES
CASES
Bradwell v.
State,
83 U.S. (16 Wall.) 130 (1872)
Citizen's
Utility Ratepayer Bd. v. State Corp. Comm'n., 264 Kan. 363, 956 P.2d 685 (1998)
Cline v.
Meis,
905 P.2d 1072 (Kan. Ct. App. 1995)
Diamond v.
Chakrabarty, 447 U.S. 303 (1980)
Kerns v.
G.A.C. Inc., 255 Kan. 264, 875 P.2d 949 (1994)
M.T. v.
J.T.,
140 N.J. Super. 77, 355 A.2d 204 (1976)
New Zealand
Attorney General v. The Family Court at Otahuhu [1995] 1 N.Z.L.R. 603
Plessey v.
Ferguson,
163 U.S. 537 (1896)
Reno v.
American Civil Liberties Union, 521 U.S. 844 (1997)
Richards v.
United States Tennis Ass'n., 93 Misc. 2d 713, 400 N.Y.S.2d 267 (Sup. Ct. 1977)
State v.
Heath,
264 Kan. 557, 957 P.2d 449 (Kan. 1998)
State v.
Stewart,
243 Kan. 639, 763 P.2d 572 (1988)
Wardell v.
Reynolds,
75 F. Supp. 2d 851 (N.D. Ill. 1999)
STATUTES
Kan. Admin.
Regs. 28-17-20(b)(1)(A)(i)
Kan. Stat.
Ann. § 23-101 (1995)
Kan. Stat.
Ann. § 65-2416(a) (1992)
MISCELLANEOUS
Anna J.
Catlin, Ethical Commentary on Gender Reassignment,
24 Pediatric Nursing 59 (1998)
Louis J. Elsas
et al., Gender Verification at the Centennial Olympic Games,
86 Journal of the Medical Association of Georgia 50 (1997)
Julie A.
Greenberg, Defining Male and Female: Intersexuality and the
Collision Between Law and Biology, 41 Ariz. L. Rev. 265 (1999)
Mary G. Linden
et al., Sex Chromosome Tetrasomy and Pentasomy,
96 Pediatrics 672 (1995)
Chanika
Phornphutkul et al., Gender Self-Reassigment in an XY Adolescent
Female Born With Ambiguous Genitalia, 106 Pediatrics 135 (2000)
Joan
Stephenson, Female Olympians Sex Tests Outmoded,
276 Journal of the American Medical Association 177 (1996)
Jean D. Wilson
& James E. Griffin III, Disorders of Sexual Differentiation, in
Harrison's Principles of Medicine 2119 (Anthony S. Fauci et al. eds., 14th ed.
1998)
INTERESTS
OF AMICI CURIAE
Amicus Gender Public Advocacy
Coalition ("GenderPAC") is a national advocacy organization working
to ensure every American's civil right to their gender free from stereotypes,
discrimination, and violence. GenderPAC's advocacy includes educating state and
federal officials on the variety of different factors that constitute an
individual's sex, and urging courts and legislative officials to respect the
choices of individuals whose identity or expression does not neatly fall within
common gender stereotypes.
Amicus American Civil
Liberties Union of Kansas and Western Missouri ("ACLU of KSWMO")
shares with its parent national organization the mission of protecting and
enforcing the civil liberties of all citizens, including the right of each
individual to express and live in accordance with his or her gender freely and
without discrimination. The ACLU of KSWMO has a particular interest in this case
because the civil liberties of a Kansas citizen and the state of the law in
Kansas are at stake.
PRELIMINARY
STATEMENT
This case
concerns a trial court's decision to disregard Kansas' provision for sex
changes and void retroactively a marriage after the death of one spouse. The
court erased the lived experience of the couple, despite the intent and
understanding of both parties and their union with a valid Kansas marriage
license. Because this appeal is from a grant of summary judgment for appellee,
all facts and inferences must be resolved in favor of the appellant. Kerns
v. G.A.C. Inc., 255 Kan. 264, 269, 875 P.2d 949, 955 (1994).
J'Noel
Gardiner was identified as male at the time of her birth, but has experienced
strong feelings of female gender identification since childhood. Brief of
Appellant ("Aplt. Br.") 3. Ms. Gardiner was eventually diagnosed with
a condition known as gender dysphoria, and after receiving counseling and
therapy, began the transitioning process from male to female under the care of
her physicians. Aplt. Br. 3. Consistent with widely accepted medical
guidelines, Ms. Gardiner underwent hormone treatments, began living her life as
a woman, and underwent sex reassignment surgery in 1994 that created fully
functional external female genitalia. Aplt. Br. 3-4. Since the early 1990s,
then, Ms. Gardiner has interacted with the world and lived in every respect as
a woman.
J'Noel and
Marshall Gardiner were married by a Justice of the Kansas Supreme Court in
September of 1998. Aplt. Br. 6-7. Prior to the marriage, Marshall had full
knowledge of Ms. Gardiner's complete sex reassignment surgery, and both parties
had every reason to believe, having met all the procedural requirements and
obtained a marriage license, that their marriage was binding. Aplt. Br. 6-7. It
was only when Joe Gardiner, estranged from his father for 16 years, initiated a
contest over Marshall's estate that the Gardiners' marriage was called into
question. Aplt. Br. 7.
Despite an
evidentiary finding that Ms. Gardiner made "every conceivable effort to
make herself a female," including sex reassignment surgery, hormonal
treatments, and legally amending the sex designation on her birth certificate,
passport, driver's license, and academic records, the trial court ruled that in
the eyes of the law, Ms. Gardiner remains a man. Vol. III, page 761, Aplt. Br.
5, 9. Its decision places primary emphasis on two factors: (1) the immutability
of chromosomal sex and (2) Ms. Gardiner's lack of internal female sexual organs
beyond her vagina (i.e., womb, cervix, and ovaries). Vol. III, page 761. The
court's reliance upon those criteria and its failure to address the full
range of factors, mutable and immutable, that determine an individual's sex
— creates conflicts with existing Kansas law, establishes an ambiguous
test that fails to account for the complex array of biological, psychological
and social factors that comprise a person's sex, and ignores a well-established
medical process that allows individuals to make their physical sex conform with
their fundamental sense of self.
Instead of
focusing on one or two indicia, the Court should adopt an approach that
incorporates the full range of factors that comprise an individual's sex. Such
an approach would acknowledge and enable the law to appropriately address the
status of people, like Ms. Gardiner, who experience gender dysphoria and seek
to alter their physical sex, as well as others whose anatomy or genes require
consideration of a number of different elements. By contrast, the trial court's
simplistic reasoning, based on findings taken almost verbatim from an
out-of-state appellate decision, shows a lack of respect for Ms. Gardiner's
lived experience, ignores important facts in this case, and is likewise
unworkable with respect to many other Kansas citizens.
Ms. Gardiner
did everything she could to establish herself physically and legally as a
woman. Vol. III, page 761. Taking into account the full range of factors that
constitute one's sex, there is only one, clear outcome for a case like this
one, where an individual has undergone sex reassignment surgery, identifies
herself as female, and is treated by others as female. Ms. Gardiner's external
anatomy, hormonal physiology, secondary sex characteristics, official records,
and psychosocial identification all indicate that she is female. If these
facts fail to prove that she is legally a woman, the Court would effectively
rule that individuals who have undergone sex reassignment surgery can never
change their sex, an outcome equivalent to the law sticking its head in
the sand and requiring medicine and society to proceed without it. (The Court
can and should leave for another day hypothetical questions involving different
facts. Ms. Gardiner's facts, however, make her proper sex female for all
legal purposes clear.
This Court is
charged with interpreting the intestate succession statute. Given the arguments
raised in this case, the Court must determine, as a matter of law, Ms.
Gardiner's sex to decide whether she is a lawful "spouse" under that
statute. See, e.g., Cline v. Meis, 905 P.2d 1072, 1076-77 (Kan. Ct. App.
1995) ("The final construction of a statute . . . rests with the
courts"). While that statute does not provide guidance to the Court on
this issue, state regulations do. Further, there is a wealth of medical
information the Court can and should look to as it decides the legal question
of Ms. Gardiner's sex on unlimited appeal. In light of this information, the
Court should acknowledge Ms. Gardiner's present-day life as a woman, and
reverse the trial court's grant of summary judgment.1 Such an
outcome is not only consistent with Kansas policy and the state of medical
knowledge, but also simply shows respect for a core aspect of Ms. Gardiner's
identity an aspect that Marshall Gardiner clearly recognized and loved during
the couple's lawful marriage as man and woman.
----------
1 It is not necessary for this Court to interpret or rule
upon the constitutionality of the statutory denial of same-sex couples"
freedom to marry to decide this case. The sole legal issue here is J'Noel
Gardiner's sex. Because Ms. Gardiner has established that she was a woman, her
marriage was "a civil contract between two parties who are of opposite
sex" and legal under Kansas law. Kan. Stat. Ann. § 23-101 (1995). The
legality, constitutionality, morality, or wisdom of the state's ban on same-sex
couples marrying are not before this Court. Moreover, because the state's
"opposite sex" requirement has been part of the state's marriage law
since 1980, it is not necessary to delve into the legislative intent underlying
the state's subsequent adoption of amendments to Kan. Stat. Ann. § 23-101 in
1996. See Aplt. Br. 16-18.
STATEMENT
OF FACTS
Amici adopt and incorporate
by reference the Statement of Facts contained in Brief of Appellant.
ARGUMENT
I. BY
FIXING A PERSON'S SEX DESIGNATION AT HIS OR HER BIRTH, THE TRIAL COURT'S
DECISION CONFLICTS WITH EXISTING KANSAS LAW GOVERNING VITAL RECORDS.
Kansas law
recognizes that an individual's legal sex can change over the course of a
lifetime. This state allows individuals to change the sex designation on their
birth certificates "with a medical certificate substantiating that a
physiological or anatomical change occurred." Kan. Admin. Regs.
28-17-20(b)(1)(A)(i). Moreover, under the law of this state, the birth
certificate is "prima facie evidence of the facts therein stated."
Kan. Stat. Ann. § 65-2416(a) (1992).
By contrast,
the trial court's decision freezes an individual's legal sex based upon the
chromosomes and anatomy he or she had at birth. This is fundamentally at odds
with the state law governing vital records that assigns legal significance to a
physiological or anatomical change in sex. Kansas law clearly contemplates and
recognizes the legal validity of Ms. Gardiner's efforts to make her physical
sex consistent with her core identity. The decision in this case should be
consistent with existing Kansas policy, not directly contrary to it as the
lower court's decision is.
In addition,
if left intact, the trial court's ruling also calls into question the
legislature's statutory mandate that a birth certificate amended or otherwise
is prima facie evidence of the information contained within it, including an
individual's sex. See Citizen's Utility Ratepayer Bd. v. State Corp. Comm'n.,
264 Kan. 363, 389, 956 P.2d 685, 703 (1998) ("[c]ourts must construe all
provisions of statutes in pari materia with a view of reconciling and bringing
them into workable harmony, if reasonably possible to do so.'" (quoting Kansas-Nebraska
Natural Gas Co. v. State Corp. Comm'n., 176 Kan. 561, 271 P.2d 1091
(1954))). A birth certificate change proves both that the person is living as
designated and that he or she has undergone physical change to present that
identity. Given the range of information such an official document provides, it
should typically be sufficient to conclusively prove sex. See infra.
II. THE
TRIAL COURT'S RELIANCE UPON CHROMOSOMES AND INTERNAL ORGANS TO REDEFINE MS.
GARDINER'S SEX FAILS TO RECOGNIZE THE COMPLEXITY OF SEXUAL IDENTITY, AND
NULLIFIES THE REALITY OF HER LIFE AND MARRIAGE.
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 a person's sense of self
and a person's interaction with society as a man or a woman. The totality of
these factors, not simply chromosomes or gonads, should legally determine an
individual's sex. See M.T. v. J.T., 140 N.J. Super. 77, 86, 355 A.2d
204, 208-09 (1976) ("there are several criteria or standards which may be
relevant in determining the sex of an individual"); New Zealand
Attorney General v. The Family Court at Otahuhu [1995] 1 N.Z.L.R. 603; Anna
J. Catlin, Ethical Commentary on Gender Reassignment, 24 Pediatric
Nursing 59 (1998).
By relying
exclusively upon the expected results of chromosomal tests and Ms. Gardiner's
internal organs at birth to determine her sex, the trial court adopted a
simplistic legal test that is not only unworkable for the many individuals
whose chromosomes and internal genitalia defy easy categorization, but ignores
the reality of Ms. Gardiner's life and her present-day body. Instead, this
Court should adopt a more sophisticated analysis one that accounts for the
full range of factors that comprise an individual's sex that would accurately
reflect Ms. Gardiner's life experience and the medical interventions that
allowed her to change many of her physical characteristics to conform to her
strongly held identity as a woman.
A. The
Trial Court's Decision To Use Chromosomal Sex As A Primary Determining Factor
In Establishing Ms. Gardiner's Legal Sex Is Not Supported By Prevailing Medical
Knowledge.
Chromosomal
sex is only one part of a larger process of physical sexual differentiation,
and should not be the dispositive factor in identifying an individual's legal
sex, either at birth or later in life. Richards v. United States Tennis
Ass'n., 93 Misc. 2d 713,722, 400 N.Y.S.2d 267, 272-73 (Sup. Ct. 1977).2
If the trial court's goal in adopting a legal test for an individual's sex is
to provide for consistent outcomes and easy resolution, chromosomal sex is not
equal to the task.
----------
2 From conception, differentiation "is a sequential process,
beginning with the establishment of chromosomal sex at fertilization, followed
by the development of gonadal sex, and culminating in the formation of the
sexual phenotypes." The Physiology of Reproduction 3 (E. Knobil and J.D.
Neill eds., 2d ed. 1994). While one's chromosomes are established at
conception, the embryos of both sexes develop in identical fashion until
approximately forty days of gestation. At that point, if a Y chromosome is
present and development proceeds in the most common way, a gene on the Y
chromosome throws a "switch," and the previously undifferentiated
gonad forms into a testis. Alternatively, in the absence of a Y chromosome,
ovaries develop. Once "gonadal sex" (testes or ovaries) is
determined, endocrine secretions result in the formation of "phenotypic
sex" the development of other internal and external genital structures.
Jean D. Wilson & James E. Griffin III, Disorders of Sexual Differentiation,
in Harrison's Principles of Medicine 2119 (Anthony S. Fauci et al. eds., 14th
ed. 1998).
While
chromosomes often correlate with other indicia of sexual identity, they can be
misleading or ambiguous when used as the dispositive factor in identifying an
individual's sex. Significantly, chromosomal sex does not always correlate with
gonadal or phenotypic sex. Moreover, chromosomal tests are flawed due to the
presence of genetic variants beyond XX and XY, which makes the precise border
between chromosomal "males" and "females" difficult to
discern.3 By granting disproportionate weight to chromosomes, the
trial court's simplistic analysis ignores biological realities.
----------
3 For example, Klinefelter's syndrome results from an XXY
chromosomal composition. Julie A. Greenberg, Defining Male and Female:
Intersexuality and the Collision Between Law and Biology, 41 Ariz. L. Rev. 265,
283 (1999). Likewise, Turner syndrome is caused primarily by an XO chromosomal
make-up, where the individual is missing a 46th chromosome. Wilson &
Griffin, supra note 2, at 2121-2122. Other chromosomal variants include XXX,
XYY, XXXX, XXXXX, XXYY, XXXY, XXXXY, XXXYY, XYYY, XYYYY, and XXYYY. Mary G.
Linden et al., Sex Chromosome Tetrasomy and Pentasomy, 96 Pediatrics 672
(1995).
XX chromosomes
(typically female) are found in approximately 1 in 20,000 phenotypic males.
These individuals are born with testes and other male genitalia, but their
chromosomal sex is XX. Wilson & Griffin, supra note 2, at 2120.
Androgen Insensitivity Syndrome (AIS) exposes similar flaws in the use of
chromosomal tests to determine sex. Individuals with AIS are born with XY
chromosomes (typically male) and functional testes. But the condition renders
them unresponsive to hormones produced by the testes, known as androgens, that
facilitate the development of internal and external genitalia. As a result,
external female genitalia form, though without any development of internal
reproductive organs, creating a vagina that ends in a "blind pouch,"
without a uterus or fallopian tubes. Despite their lack of internal female
reproductive organs a trait shared by Ms. Gardiner under prevailing medical
practice, people with AIS are usually identified as female at birth because
they are externally indistinguishable from XX females, despite the presence of
XY chromosomes and testes. Greenberg, supra note 3, at 286-87.
Due in part to
inconsistent definitions of sex that result from chromosomal identification,
the use of chromosomal tests as the dispositive factor in determining an
individual's sex has been roundly criticized by medical experts and rejected by
the International Olympic Committee, which eliminated chromosomal testing of
female athletes for the 2000 and 2002 Olympics. Janet Rae Brooks, IOC's
Gender Tests Are a Cold War Relic, Salt Lake City Tribune, April 6, 2000,
at E1. The IOC's removal of chromosomal tests in its sporting events is
consistent with the position taken by a number of prominent medical
organizations, including the American Medical Association, the American Academy
of Pediatrics, the American College of Obstetricians and Gynecologists, the
American College of Physicians, and the American Society of Human Genetics.
Joan Stephenson, Female Olympians Sex Tests Outmoded, 276 Journal of the
American Medical Association 177 (1996).
Furthermore,
individuals with Y-chromosomal material and surgically removed testes like
Ms. Gardiner competed as women at the 1996 Summer Olympics in Atlanta. Of the
3,387 female athletes who underwent gender verification testing, eight tested
positive for Y-chromosomal material. Despite the presence of Y chromosomes and
the fact that seven of the athletes had undergone the type of surgical
interventions which the court below dismissed as "man-made," all
eight were allowed to compete as women. Louis J. Elsas et al., Gender
Verification at the Centennial Olympic Games, 86 Journal of the Medical
Association of Georgia 50 (1997).
Finally, while
chromosomal sex remains fixed throughout an individual's lifetime, its effects
are mutable. As Ms. Gardiner's own medical history demonstrates, testes or
ovaries can be removed, external genitalia can be surgically altered, and
hormones can be supplemented and medically adjusted. These physical
characteristics can, importantly, be conformed to an individual's psychological
and social sexual identity. It is the whole package of psychological, social
and physical characteristics that makes up a person's sex.
B.
Disproportionate Reliance Upon Anatomy At Birth Presents Similar Problems.
The trial
court also, erroneously, emphasized that Ms. Gardiner does not have ovaries and
other internal organs to the exclusion of key additional factors that determine
one's sex. As with chromosomal sex, exclusive reliance on one's organs at birth
would likewise not provide consistent outcomes, and would fail to reflect the
full complexity inherent in the physical anatomy of sexual differentiation.
Moreover, such an approach totally ignores the psychological, core identity
aspect of sex.
Hermaphrodism,
which describes a variety of different clinical conditions that affect an
individual's gonadal and phenotypic sex, is an excellent example of the
inability to use sex organs at birth as a reliable or useful measure of sex.
"True" hermaphrodites are born with both an ovary and a testis or
with features of both (known as "ovotestis"), and can have either XX
or XY karyotypes. Wilson & Griffin, supra note 2, at 2123. Moreover,
with true hermaphrodites, "external genitalia exhibit all gradations of
the male-to-female spectrum." Id.4
----------
4 Similarly, pseudohermaphrodism encompasses a number of
medical conditions where the gonadal and chromosomal sex are consistent, but as
with "true" hermaphrodites, the external genitalia vary along a
male-to-female continuum. Melvin M. Grumbach, Abnormalities of Sex
Determination and Differentiation in Rudolph's Pediatrics 1775 (Abraham M.
Rudolph, ed., 20th ed. 1996). Other conditions affecting gonadal sex include
"absent testes syndrome," where an XY chromosomal male is born with
absent or rudimentary testes, and Turner syndrome, which results in unformed
and non-functioning gonads (known as "streak" gonads). Wilson &
Griffin, supra note 2, at 2124; Greenberg, supra note 3, at 284.
The trial
court's focus on Ms. Gardiner's "man-made" genitalia further
highlights the problem of relying on an individual's physical characteristics
at birth. Approximately 1 in 1000 to 2000 newborns are born with genitalia
considered ambiguous enough to warrant genital surgery. Chanika Phornphutkul et
al., Gender Self-Reassigment in an XY Adolescent Female Born With Ambiguous
Genitalia, 106 Pediatrics 135 (2000).5
----------
5 There are serious ethical issues about whether such
surgeries are appropriate. Amici refer to them only to show that many
individuals have "man-made" genitalia, in the words of the trial
court, and do not take a position here on the merits of such procedures at
birth.
Many of these
individuals undergo surgical procedures, like vaginoplasty, that are similar to
those performed on Ms. Gardiner. See Arnold G. Corcoran, Intersex,
Vaginal, and Uterine Anomolies, in Surgery: Scientific Principles and
Practice 2111 (Lazar J. Greenfield et al. eds., 2d ed. 1997). Generally, these
infants are raised and treated legally in a manner consistent with the surgical
changes.
As with many
others, individuals who undergo sex reassignment surgery to make their bodies
congruent with their gender identities, like Ms. Gardiner, do not fit within
the simplistic legal framework offered by the trial court. Amici
recognize that chromosomes and internal sex organs are part of the multi-faceted
picture that ultimately constitutes sex, but they cannot be the exclusive
factors. Physically, both internal and external genitalia are meaningful
components of an individual's sex, along with hormonal levels and secondary sex
characteristics. In addition, psychosocial identification is as vital a part of
defining sex, if not more so, than any physical measure.
Moreover, it
is Ms. Gardiner's body at the time of her marriage, rather than the anatomy of
her birth, that should be the focus of any anatomical inquiry. Like Dr. Renee
Richards before her, Ms. Gardiner's internal sex organs are like those of a
woman who has had a hysterectomy and her ovaries removed. Her external organs
as well as her appearance, and her psychological, social, and endocrinological
make-up & #151; are all female. Richards, 93 Misc. at 719, 400 N.Y.S.2d at
271. Indeed, the trial court's definition of legal sex relates in no way to Ms.
Gardiner's present-day body or her day-to-day interactions with other people,
nor their interactions with her, relying instead upon anatomical factors that
are either obsolete due to surgical intervention or are detectable only with
genetic testing. By reversing the trial court's decision, this Court would
"do no more than give legal effect to a fait accompli." M.T. v.
J.T., 140 N.J. Super. at 90, 355 A.2d at 211.
In any case
where, as Ms. Gardiner has, a person takes every conceivable step to conform
her body and her social identity to her core psychological identity as a woman,
she should be treated by the law as female. The sex reflected on her birth
certificate, passport, and driver's license should also be her sex for the
purposes of this case and any other legal matters. Mr. Gardiner knew her in
every respect as a woman, she lived in their marriage as a woman, and that
reality should not be contradicted in retrospect.
III. LEGAL
RULINGS SHOULD BE CONSISTENT WITH SCIENTIFIC DEVELOPMENTS AND SOCIAL REALITIES.
Modern-day
medicine is capable of incredible achievements that would have been inconceivable
one hundred years ago, including advances that allow individuals to change
significant aspects of their bodies, once thought immutable, to better conform
with their fundamental sense of self. But by effectively holding that
individuals can never change their sex under Kansas law, the trial court's
approach ignores scientific progress and social reality, freezing the law in a
place that bears little relevance to contemporary medical practices or Ms.
Gardiner's lived experience.
Instead, the
law must take account of medical developments and contemporary knowledge about
sex reassignment surgery and gender identity, just as the law has accommodated
medical and social change in other contexts. For example, First Amendment and
intellectual property law have advanced to meet the new challenges presented by
scientific and technological breakthroughs. See, e.g., Reno v. American
Civil Liberties Union, 521 U.S. 844 (1997) (holding federal law regulating
internet communications unconstitutional under prior principles developed for
other media); Diamond v. Chakrabarty, 447 U.S. 303 (1980) (holding live
human-made microorganism is patentable under pre-existing statutes). Similarly,
the availability of DNA testing has provided a new means for the reversal of
criminal convictions. See, e.g., Wardell v. Reynolds, 75 F. Supp. 2d 851
(N.D. Ill. 1999). Our evolving understanding of "hard" science as
well as social science has led to widespread acceptance of scientific evidence
that would have been unheard of thirty years ago. See, e.g., State v.
Stewart, 243 Kan. 639, 646, 763 P.2d 572, 577 (1988) (admitting evidence on
battered women's syndrome); State v. Heath, 264 Kan. 557, 574, 957 P.2d
449 (Kan. 1998) (battered child syndrome).
Though it
seems inconceivable today, courts denied Myra Bradwell a law license based on
the belief that "[t]he paramount destiny and mission of woman are to
fulfil [sic] the noble and benign offices of wife and mother" because this
is "the law of the Creator." Bradwell v. State, 83 U.S. (16 Wall.)
130, 141 (1872) (Bradley, J., concurring). Likewise, Louisiana was permitted to
examine Mr. Plessey's blood in order to deny him equal public accommodations
based upon supposed intraracial "natural affinities." Plessey v.
Ferguson, 163 U.S. 537 (1896), overruled by, Brown v. Board of Ed.,
347 U.S. 483 (1954). These judicial perspectives were, at the time, believed to
be grounded in nature and science. Yet today, the law's recognition of
developments in science and society have relegated them to the annals of
history.
Confidence in
the efficacy of courts and in the rule of law is eroded where, as here, the law
ignores medical information and the multifaceted aspects of an issue. The
judicial system is not doing its job if it pretends that bad rules based on
overly simplistic understandings are actually good rules merely because they
offer the illusion of certainty. Human beings are more than a collection of
chromosomal material, and the reality of sexual anatomy and identity is far
more complex than the trial court's simplistic approach allows.
Kansas law,
moreover, has already recognized that "physiological or anatomical
change" can occur and appropriately trigger the legal change of sex. Kan.
Admin. Regs. 28-17-20(b)(1)(A)(i). That existing state policy should be
followed here, by holding that Ms. Gardiner is legally a woman.
CONCLUSION
Accordingly, amici
respectfully request that this Court reverse the judgment below.
Dated:
________________
Respectfully
Submitted, ______________________
Lisa Nathanson
(Bar No. 10759)
AMERICAN CIVIL LIBERTIES UNION
OF KANSAS AND WESTERN MISSOURI
3601 Main Street
Kansas City, Missouri 64111
(816) 756-3113
Attorney for Amicus Curiae ACLU of Kansas and Western Missouri
Doni
Gewirtzman
Ruth E. Harlow
Beatrice Dohrn
Evan Wolfson
LAMBDA LEGAL DEFENSE
AND EDUCATION FUND, INC.
120 Wall Street, Suite 1500
New York, NY 10005
(212) 809-8585
Pamela Sumners
AMERICAN CIVIL LIBERTIES UNION
OF ILLINOIS
180 No. Michigan Ave., Suite 2300
Chicago, IL 60601-1287
(312) 201-9740
Attorneys
for Amicus Curiae Gender Public Advocacy Coalition
CERTIFICATE OF SERVICE
I hereby
certify that 5 true and correct copies of the foregoing Brief of Amici
Curiae of the Gender Public Advocacy Coalition and the American Civil
Liberties Union of Kansas and Western Missouri were placed in the United States
mail, first class postage prepaid, addressed to the following, on this ___ day
of _______________, 2000:
Karen S.
Rosenberg
Krigel & Krigel, P.C.
4550 Bellview
Kansas City, MO 64111
Counsel for J'Noel Gardiner
John F.
Thompson
Davis, Beall, McGuire & Thompson
117 Cherokee St.
P.O. Box 69
Leavenworth, KS 66048
Counsel for Joseph Gardiner, III
David G.
Watkins
William M. Modrcin
Morrison & Hecker
2600 Grand Avenue
Kansas City, MO 64108-4606
Counsel for Joseph Gardiner, III
Leonard
Buddenbohm
Foley & Buddenbohm
107 N. 6th Street
Atchison, KS 66002
Administrator of the Estate of Marshall G. Gardiner
______________________________
Lisa Nathanson
American Civil Liberties Union
of Kansas and Western Missouri
3601 Main Street
Kansas City, Missouri 64111