July 7, 2000

Page One Feature

Double Bind: Why a Woman in Missouri
Is a Man in Kansas, and Why It Matters

By DEVON SPURGEON
Staff Reporter of THE WALL STREET JOURNAL

LEAVENWORTH, Kan. -- Eleven months after marrying J'Noel Ball, Marshall
Gardiner died last year of a heart attack, leaving an estate worth $2.5
million and no will.

Typically, Kansas law would divide the estate evenly between a widow and
any
offspring. But in this case, Marshall Gardiner's only child, Joe
Gardiner,
hired a private investigator to check out his stepmother. The outcome
was
startling:
Her Social Security number had been issued to a man. J'Noel Ball
Gardiner
had had a sex change.

Joe Gardiner sued, contesting the legality of his father's
marriage, and the case could well establish a precedent
for determining the validity of such unions. The issue is
certain to come up again because sex-change operations
in the U.S. are growing at a rate of about 10% annually,
to about 5,000 last year, according to Nancy Cain,
executive director of the International Foundation for
Gender Education, in Boston.

On Jan. 20, a state court judge here sided with Joe
Gardiner, issuing, in essence, a
once-a-man-always-a-man ruling. But J'Noel Gardiner
is appealing. Noting that Wisconsin, where she was
born, had reissued her birth certificate to say she is female, she says
it
wouldn't make sense for her to be barred by law from marrying a man in
Kansas and from marrying a woman in Wisconsin.

"Would the state of Kansas want me to marry another woman?" says Ms.
Gardiner.

Only in Vermont and only since last week are same-sex marriages legal.
But
while most states will issue and recognize new birth certificates
reflecting
a sex change, Kansas won't. So, Ms. Gardiner is legally a woman in
Missouri, where she lives, but a man in Kansas, where she got married.
Solving this interstate anomaly might take federal legislation, says
Andrew Koppelman, a constitutional-law specialist at Northwestern
University Law School, in Chicago.

Over a period of decades, Mr. Gardiner had become well-known here as a
two-term member of the Kansas House of Representatives, a friend of
President Truman, and a successful stockbroker. For years, he and his
first
wife, Molly, wrote for the Leavenworth Times. It was her death, in 1984,

that left Marshall vulnerable, says his son.

Until Mr. Gardiner died, nobody seems to have known that J'Noel Gardiner

had ever been a man. Those in the dark included her colleagues and
students
at Park University in Parkville, Mo., near Kansas City, where she
teaches
finance in an M.B.A. program. So Ms. Gardiner felt exposed, anxious and
publicity-shy when the Kansas court issued its ruling that she still is
a
man. When a Kansas City Star reporter called her, according to the
newspaper's account, she said: "Why don't you go join 'The Jerry
Springer
Show.' "

But once the news got out, Ms. Gardiner says, her colleagues at Park
University were totally supportive, and that bolstered her determination

to appeal the ruling. Now, she says, she won't give up until she and
others in similar circumstances can travel the nation without being
stopped at state lines.

This isn't how the man she once was aspired to make his mark. When he
got
his doctorate in finance from the University of Georgia in 1987, Jay
Ball
dreamed of academic glory. After winning a professorship at Northeastern

University in Boston, he published such articles as "Using the Analytic
Hierarchy Process in House Selection" in the Journal of Real Estate
Finance and Economics.

During her first five years as a woman, she says, she was a cautious
dater,
afraid to have a relationship with a man lest he learn about her past.
Then, in 1998, she met Marshall Gardiner. He was 85 years old, she was
40.
After their first date, she says, she knew "he was my soul mate."

She says a vital measure of the trust between them was that he was the
first
person outside her family whom she trusted to know about her past. She
says
she made the disclosure during a Scrabble game three months after they
started dating. His reaction: He told her "I love you to the core." A
month after that, he married her in a civil ceremony in Oskaloosa, Kan.

During the 11 months they lived together as husband and wife, Ms.
Gardiner
says, her life was "almost perfect." But that was shattered when he had
a
heart attack and died on a flight to Baltimore.

When word of his dad's death reached the Georgia home of Joe Gardiner,
he
was a bit suspicious. He had never met his father's bride, but he knew
that
she was young -- 13 years younger than he himself -- and he thought the
relationship was odd. After all, J'Noel Ball knew from the outset that
Marshall Gardiner was relatively well-to-do. And after the marriage,
Marshall Gardiner had bought a house for her on three acres near campus
in
Parkville and a Nissan sports car to match his.

To watch closely the settlement of his father's estate, Joe Gardiner, a
Web-page designer whose business is portable, packed it up and returned
with his wife here to Leavenworth. His first meetings with Ms. Gardiner,

at the funeral and otherwise, raised no suspicions, he says. He thought
she was nice. Still, he didn't believe she deserved half his father's
estate, so he hired an attorney, and the attorney hired a private eye.
"I
wasn't sure whether to believe it," says Joe of the news. "We had no
idea
that she had been a he." When confronted by his attorney, John F.
Thompson, she made no effort to deny it, all agree.

Just as J'Noel Gardiner denies that money influenced her decision to
marry
Marshall Gardiner, Joe Gardiner says it had little to do with his effort
to
nullify the marriage. He says he doesn't believe his father ever knew he

had married a former man. "He was a religious person," the son says --
and
conservative. "He was born in 1912 and was concerned about his stature
in
the community." Of Ms. Gardiner, he says: "She took advantage of my
father."

Tension is high between the two sides. Joe Gardiner offered a settlement
Ms.
Gardiner turned down.

If she doesn't prevail, she still has a job at Park. In a statement,
Park
University President Donald Breckon says, "Dr. J'Noel Ball Gardiner was
hired by Park University summer 1997. … Park faculty and
administrative staff that interviewed her were not then aware of the
gender issue, and did not become aware of it until it was raised in
recent
weeks during pending litigation.
J'Noel was and is an excellent faculty member. Out of respect to her
privacy, we will have no further comment on this matter."

Write to Devon Spurgeon at [log in to unmask]


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