"Nature loves diversity, society hates it."
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. The legislative lacuna produced significant latitude for the lower courts to reach differing conclusions about the constitutive characteristics of sex. Judges hostile to J'Noel's identity claims defined sex as an immutable biological fact, while sympathetic judges suggested sex should be legally determined by a more complicated set of factors than the medical assignment of sex at one's birth.
When the Kansas Supreme Court agreed to hear the case, they provided a venue for a proxy war between same-sex civil marriage advocates and opponents. Edward White from the Thomas More Center for Law and Justice, an ardent opponent of same-sex civil marriage, stated: "We're talking 'Brave New World' here ... If a determination is made that a transsexual can marry, the next step would be homosexual marriage and lesbian marriage" (qtd. in Wilgoren 18). Supporters of same-sex civil marriage similarly involved themselves in the case to try to exploit the potential fissures generated by J'Noel's challenge to the law. The National Center for Lesbian Rights, the National Gay and Lesbian Task Force, Lambda Legal Defense Fund, and the American Civil Liberties Union provided legal counsel and advice, amicus briefs, and comments for the media (Lamoy A1). In the end, the Kansas Supreme Court denied same-sex civil marriage advocates any precedential traction when they ruled in favor of Joe, leaving J'Noel without a home and her share of their estate. In short, the justices unanimously defined sex as an immutable characteristic determined by one's ability to procreate.
With the array of definitional options available to the Court, the announced standard is a curious one that deserves further scrutiny and offers a productive entry point into the politics of who has the authority and expertise to define sex. Therefore, rather than view In re Gardiner as a same-sex civil marriage case, I suggest an alternative reading of this case interested in the Kansas Supreme Court's tortured, convoluted, and contradictory logic to preserve the stability of sexual binaries, a critique that shifts the focus from the legality of marriage to the cultural pedagogies of sex. To these ends, I identify Gardiner as a site of definitional crisis, or what Edward Schiappa terms "definitional rupture," wherein ostensibly obvious terms are revealed to be abstract and value-laden cultural conveniences rather than factual, objective truths (8). When viewed through the lens of definitional rupture, the court's decision and its reliance on commonsensical and "hetero-corporo-normative" (3) notions of sex undermines any claim to facticity, thus paving the way for more sustained investigation into the cultural production of identity markers such as sex. In accordance with this critical attitude, one that privileges rhetorical critique as an exercise in both judgment and invention, I suggest the definitional rupture of sex obliges us to consider the stakes of the state's prescriptive authority in this arena vis-a-vis the self-determination of one's sex. That is, in lieu of a perspective that treats the law as an objective science free from cultural influence and an internally coherent system when practiced properly, I want to direct our attention and energy to the discursive production of the law to explore our cultural investments in binary sexual schema.
To further contextualize these issues, in the second section of this essay, I analyze the actions of advocates in New York City (NYC) who worked to revise the standards associated with the procurement of amended birth certificates. What may appear to be an odd archive at first glance, a court case in Kansas and a regulatory revision in NYC, reveals itself to be instructive about the intertextual flows of culture and law as they are connected both by a specific citational history and the more generalized understandings of the permanence of one's sex. In response to the definitional ruptures created by an outdated policy, transgender advocates cultivated a working relationship with NYC's regulatory agencies to simplify and update the policies regarding amended birth certificates. Although the transgender advocates' initial efforts persuaded the medical and public health officials to adopt less cumbersome requirements for amended birth certificates, in the final version of the policy, arguments aligned with current medical and psychological protocols gave way to public concerns about the redefinition of sex. As in Kansas, the transgender advocates in NYC were unable to overcome the interference of cultural norms and prejudices in these supposedly rational and technical spheres of argument. Taken together, these two cases underscore the interimplication of law and culture, whether in the courts or in regulatory agencies, and the need to cultivate different cultural pedagogies of sex as much as, if not more so, than direct appeals to the state for recognition. While not an issue of one strategy trading off with the other, these cases highlight the inextricable link between legal recognition and cultural intelligibility and the possibility that the latter is the precondition of the former. Both of these case studies, then, can be read as failures in that transgender advocates did not obtain the optimal result. For critics of argument, however, we can provide insight into how the conversion of contestable cultural claims about bodies and sexes into legal logics saturated in cultural norms short-circuits the ability of advocates to question the state's monopoly on defining sex.
In the vast majority of our everyday communicative interactions, definitions are unproblematically deployed as arhetorical observations of the world around us. At the institutional level, our faith in the objectivity of definitions in legal statutes and opinions is shaken only in the rarest of circumstances, such as public controversies involving abortion where the definitions of life and choice reveal themselves as contestable...