In Re the Estate of Gardiner

The opinion of the court was delivered by

J’Noel Gardiner appealed from the district court’s entry of summary judgment in favor of Joseph M. Gardiner, III, (Joe) in the probate proceeding of Marshall G. Gardiner. The district court had concluded that the marriage between Joe’s father, Marshall, and J’Noel, a post-operative male-to-female transsexual, was void under Kansas law.

The Court of Appeals reversed and remanded for the district court’s determination whether J’Noel was male or female at the time the marriage license was issued. See In re Estate of Gardiner, 29 Kan. App. 2d 92, 22 P.3d 1086 (2001). The Court of Appeals directed the district court to consider a number of factors in ad *193 dition to chromosomes. Joe’s petition for review of the decision of the Court of Appeals was granted by this court.

The following facts regarding J’Noel’s personal background are taken from the opinion of the Court of Appeals:

“J’Noel was bom in Green Bay, Wisconsin. J’Noel’s original birth certificate indicates J’Noel was bom a male. The record shows that after sex reassignment surgery, J’Noel’s birth certificate was amended in Wisconsin, pursuant to Wisconsin statutes, to state that she was female. J’Noel argued that the order drafted by a Wisconsin court directing the Department of Health and Social Services in Wisconsin to prepare a new birth record must be given full faith and credit in Kansas.

“Marshall was a businessman in northeast Kansas who had accumulated some wealth. He had one son, Joe, from whom he was estranged. Marshall’s wife had died some time before he met J’Noel. There is no evidence that Marshall was not competent. Indeed, both Marshall and J’Noel possessed intelligénce and real world experience. J’Noel had a Ph.D in finance and was a teacher at Park College.

“J’Noel met Marshall while on the faculty at Park College in May 1998. Marshall was a donor to the school. After the third or fourth date, J’Noel testified that Marshall brought up marriage. J’Noel wanted to get to know Marshall better, so they went to Utah for a trip. When asked about when they became sexually intimate, J’Noel testified that on this trip, Marshall had an orgasm. J’Noel stated that sometime in July 1998, Marshall was told about J’Noel’s prior history as a male. The two were married in Kansas on September 25, 1998.

“There is no evidence in the record to support Joe’s suggestion that Marshall did not know about J’Noel’s sex reassignment. It had been completed years before Marshall and J’Noel met. Nor is there any evidence that Marshall and J’Noel were not compatible.

“Both parties agree that J’Noel has gender dysphoria or is a transsexual. J’Noel agrees that she was bom with male genitalia. In a deposition, J’Noel testified that she was bom with a ‘birth defect’ — a penis and testicles. J’Noel stated that she thought something was ‘wrong’ even prepuberty and that she viewed herself as a girl but had a penis and testicles.

“J’Noel’s journey from perceiving herself as one sex to the sex her brain suggests she was, deserves to be detailed. In 1991 and 1992, J’Noel began electrolysis and then thermolysis to remove body hair on the face, neck, and chest. J’Noel was married at the time and was married for 5 years. Also, beginning in 1992, J’Noel began taking hormones, and, in 1993, she had a tracheal shave. A tracheal shave is surgery to the throat to change the voice. All the while, J’Noel was receiving therapy and counseling.

“In February 1994, J’Noel had a bilateral orchiectomy to remove the testicles. J’Noel also had a forehead/eyebrow lift at this time and rhinoplasty. Rhinoplasty refers to plastic surgery to alter one’s nose. In July 1994, J’Noel consulted with a psychiatrist, who opined that there were no signs of thought disorder or major *194 affective disorder, that J’Noel fully understood the nature of the process of transsexual change, and that her life history was consistent with a diagnosis of transsexualism. The psychiatrist recommended to J’Noel that total sex reassignment was the next appropriate step in her treatment.

“In August 1994, J’Noel underwent further sex reassignment surgery. In this surgery, Eugene Schrang, M.D., J’Noel’s doctor, essentially cut and inverted the penis, using part of the skin to form a female vagina, labia, and clitoris. Dr. Schrang, in a letter dated October 1994, stated that J’Noel has a ‘fully functional vagina’ and should be considered ‘a functioning, anatomical female.’ In 1995, J’Noel also had cheek implants. J’Noel continues to take hormone replacements.

“After the surgery in 1994, J’Noel petitioned the Circuit Court of Outagamie County, Wisconsin, for a new birth certificate which would reflect her new name as J’Noel Ball and sex as female. The court issued a report ordering the state registrar to make these changes and issue a new birth certificate. A new birth certificate was issued on September 26, 1994. The birth certificate indicated the child’s name as J’Noel Ball and sex as female. J’Noel also has had her driver’s license, passport, and health documents changed to reflect her new status. Her records at two universities have also been changed to reflect her new sex designation.” 29 Kan. App. 2d at 96-98.

Before meeting Marshall, J’Noel was married to S.P., a female. J’Noel and S.P. met and began living together in 1980, while J’Noel was in college. They married in 1988. J’Noel testified she and S.P. engaged in heterosexual relations during their relationship. J’Noel believed she was capable of fathering children, and the couple used birth control so S.P. would not become pregnant. J’Noel and S.P. divorced in May 1994.

J’Noel Ball and Marshall Gardiner were married in Kansas in September 1998. Marshall died intestate in August 1999. This legal journey started with Joe filing a petition for letters of administration, alleging that J’Noel had waived any rights to Marshall’s estate. J’Noel filed an objection and asked that letters of administration be issued to her. The court then appointed a special administrator. Joe amended his petition, alleging that he was the sole heir in that the marriage between J’Noel and Marshall was void since J’Noel was bom a man. J’Noel argues that she is a biological female and was at the time of her marriage to Marshall. There is no dispute that J’Noel is a transsexual.

According to Stedman’s Medical Dictionary 1841 (26th ed. 1995), a transsexual is a “person with the external genitalia and *195 secondary sexual characteristics of one sex, but whose personal identification and psychosocial configuration is that of the opposite sex; a study of morphologic, genetic, and gonadal structure may be genitally congruent or incongruent.” A post-operative transsexual, such as J’Noel, is a person who has undergone medical and surgical procedures to alter “external sexual characteristics so that they resemble tiróse of the opposite sex.” Stedman’s Med. Diet. 1841 (26th ed. 1995). The external sexual characteristics may include genitalia, body and facial hair, breasts, voice, and facial features.

Joe opposed J’Noel’s receiving a spousal share of Marshall’s estate on several grounds — waiver, fraud, and void marriage in that J’Noel remained a male for the purpose of the “opposite sex” requirement of K.S.A. 2001 Supp. 23-101.

On cross-motions for summary judgment, the district court denied J’Noel’s motion by declining to give full faith and credit to J’Noel’s Wisconsin birth certificate, which had been amended as to sex and name. Joe’s waiver argument was based on a writing that purports to waive J’Noel’s interests in Marshall’s property. The district court declined to conclude as a matter of law that the writing constituted a waiver. The factual issue of fraud was not decided on summary judgment. The district court granted Joe’s motion with regard to the validity of the marriage on the ground that J’Noel is a male.

J’Noel appealed from tire district court’s entry of summary judgment against her and in Joe’s favor. Joe did not cross-appeal. The Court of Appeals affirmed the district court’s ruling denying J’Noel’s motion for summary judgment. J’Noel did not file a cross-petition for review of that ruling, and it is not before this court. Since Joe did not file a cross-appeal of the district court’s decision on waiver and fraud, those issues are likewise not before the court. The sole issue for review is whether the district court erroneously entered summary judgment in favor of Joe on the ground that J’Noel’s marriage to Marshall was void.

On the question of validity of the marriage of a post-operative transsexual, there are two distinct “lines” of cases. One judges validity of the marriage according to the sexual classification assigned to the transsexual at birth. The other views medical and surgical *196 procedures as a means of unifying a divided sexual identity and determines the transsexual’s sexual classification for the purpose of marriage at the time of marriage. The essential difference between the two approaches is the latter’s crediting a mental component, as well as an anatomical component, to each person’s sexual identity.

Among the cases brought to the court’s attention not recognizing a mental component or the efficacy of medical and surgical procedures are Corbett v. Corbett, 2 All E.R. 33 (1970); In re Ladrach, 32 Ohio Misc. 2d 6, 513 N.E.2d 828 (1987); and Littleton v. Prange, 9 S.W.3d 223 (Tex. Civ. App. 1999), cert. denied 531 U.S. 872 (2000). Recognizing them are M.T. v. J.T., 140 N.J. Super 77, 355 A.2d 204, cert. denied 71 N.J. 345 (1976); and In re Kevin, FamCA 1074 (File No. SY8136 OF 1999, Family Court of Australia, at Sydney, 2001).

The district court, in the present case, relied on Littleton. The Court of Appeals relied on M.T. In re Kevin was decided after the Court of Appeals issued its opinion, and it cites In re Estate of Gardiner with approval; review of that case by the full Family Court of Australia has been heard, but an opinion has not yet been issued.

Littleton was the source for the district court’s language and reasoning. The Texas court’s statement of the issue was: “[C]an a physician change the gender of a person with a scalpel, drugs and counseling, or is a person’s gender immutably fixed by our Creator at birth?” 9 S.W.3d at 224. For what purported to be its findings of fact, the district court restated the Texas court’s conclusions nearly verbatim (See 9 S.W.3d at 230-31):

“Medical science recognizes that there are individuals whose sexual self-identity is in conflict with their biological and anatomical sex. Such people are termed transsexuals. . . .

“[T]ranssexuals believe and feel they are members of the opposite sex. . . . J’Noel is a transsexual.

"[T]hrough surgery and hormones, a transsexual male can be made to look like a woman, including female genitalia and breasts. Transsexual medical treatment, however, does not create the internal sexual organs of a woman, except for the vaginal canal. There is no womb, cervix or ovaries in the post-operative transsexual female.

*197 “[T]he male chromosomes do not change -with either hormonal treatment or sex reassignment surgery. Biologically, a post-operative female transsexual is still a male. . . .

“The evidence fully supports that J’Noel, bom male, wants and believes herself to be a woman. She has made every conceivable effort to make herself a female.

“[S]ome physicians would consider J’Noel a female; other physicians would consider her still a male. 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.

“From that the Court has to conclude, and from the evidence that’s been submitted under the affidavits, as a matter of law, she — J’Noel is a male.”

The Court of Appeals found no error in the district court’s not giving the Wisconsin birth certificate full faith and credit. 29 Kan. App. 2d at 125. With regard to the validity of the marriage, the Court of Appeals reversed and remanded for the district court’s determination whether J’Noel was male or female, for the purpose of K.S.A. 2001 Supp. 23-101, at the time the marriage license was issued. 29 Kan. App. 2d at 127-28.

The Court of Appeals rejected the reasoning of Littleton “as a rigid and simplistic approach to issues that are far more complex than addressed in that opinion.” 29 Kan. App. 2d at 127. The Court of Appeals “look[ed] with favor on the reasoning and the language” of M.T. 29 Kan. App. 2d at 128. The Court of Appeals engaged in the following discussion of the decision in M.T.:

“In M.T., a husband and wife were divorcing, and the issue was support and maintenance. The husband argued that he should not have to pay support to his wife because she was a male, making the marriage void. The issue before the court, similar to that before this court, was whether the marriage of a post-operative male-to-female transsexual and a male was a lawful marriage between a man and a woman. The court found that it was a valid marriage. 140 N.J. Super. at 90.

“In affirming the lower court’s decision, the court noted the English court’s previous decision in Corbett. 140 N.J. Super. at 85-86. The court rejected the reasoning of Corbett, though, finding that ‘for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards.’ 140 N.J. Super. at 87. Since the court found that the wife’s gender and genitalia were no longer ‘discordant’ and had been harmonized by medical treatment, the court held that the wife was a female at the time of her marriage and that her husband, then, was obligated to support her. 140 N.J. Super. at 89-90.

*198 “The importance of the holding in M. T. is that it replaces the biological sex test with dual tests of anatomy and gender, where ‘for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards.’ 140 N.J. Super. at 87.

“The M.T. court further stated:

‘In this case the transsexual’s gender and genitalia are no longer discordant; they have been harmonized through medical treatment. Plaintiff has become physically and psychologically unified and fully capable of sexual activity consistent with her reconciled sexual attributes of gender and anatomy. Consequently, plaintiff should be considered a member of the female sex for marital purposes. It follows that such an individual would have the capacity to enter into a valid marriage relationship with a person of the opposite sex and did so here. In so ruling we do no more than give legal effect to a fait accompli, based upon medical judgment and action which are irreversible. Such recognition will promote the individual’s quest for inner peace and personal happiness, while in no way dis-serving any societal interest, principle of public order or precept of morality.’ 140 N.J. Super at 89-90.

“In M.T., the husband was arguing that he did not owe any support because his wife was a man. However, in the record, it was stated that the wife had a sex reassignment operation after meeting the husband. Her husband paid for tire operation. The husband later deserted the wife and then tried to get out of paying support to someone he had been living with since 1964 and had been married to for over 2 years.” 29 Kan. App. 2d at 113-14.

In his petition for review, Joe complained that the Court of Appeals failed to “ask the fundamental question of whether a person can actually change sex within the context of K.S.A. 23-101.” On the issue of the validity of the marriage, Joe’s principal arguments were that the Court of Appeals failed to give K.S.A. 2001 Supp. 23-101 its plain and unambiguous meaning and that the Court of Appeals’ opinion improperly usurps the legislature’s policy-making role.

K.S.A. 2001 Supp. 23-101 provides:

“The marriage contract is to be considered in law as 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. The consent of the parties is essential. The marriage ceremony may be regarded either as a civil ceremony or as a religious sacrament, but the marriage relation shall only be entered into, maintained or abrogated as provided by law.”

Joe’s principal argument is that the statutory phrase is plain and unambiguous. His statements of the issue and his position, how *199 ever, go beyond the statutory phrase to pin down the time when the two parties are of opposite sex. The plain and unambiguous meaning of K.S.A. 2001 Supp. 23-101, according to Joe, is that a valid marriage must be between two persons who are of opposite sex at the time of birth.

Applying the statute as Joe advocates, a male-to-female transsexual whose sexual preference is for women may marry a woman within the advocated reading of K.S.A. 2001 Supp. 23-101 because, at the time of birth, one marriage partner was male and one was female. Thus, in spite of the outward appearance of femaleness in both marriage partners at the time of the marriage, it would not be a void marriage under the advocated reading of K.S.A. 2001 Supp. 23-101. As the Court of Appeals stated in regard to J’Noel’s argument that K.S.A. 2001 Supp. 23-101, as applied by the district court, denied her right to marry: “When J’Noel was found by the district court to be a male for purposes of Kansas law, she was denied the right to marry a male. It logically follows, therefore, that the court did not forbid J’Noel from marrying a female.” 29 Kan. App. 2d at 126.

Joe’s fallback argument is that the legislature’s intent was to uphold “traditional marriage,” interpreting K.S.A. 2001 Supp. 23-101 so that it invalidates a marriage between persons who are not of the opposite sex, i.e., a biological male and a biological female.

Joe also contends that the legislature did not intend for the phrase “opposite sex” in K.S.A. 2001 Supp. 23-101 to allow for a change from the sexual classification assigned at birth.

The other facet of Joe’s argument is that policy questions are for the legislature rather than the courts. In K.S.A. 2001 Supp. 23-101 and K.S.A. 2001 Supp. 23-115, the legislature declared the public policy of recognizing only marriages between a man and a woman. K.S.A. 2001 Supp. 23-115 provides:

“All marriages contracted without this state, which would be valid by the laws of the countiy in which the same were contracted, shall be valid in all courts and places in this state. It is the strong public policy of this state only to recognize as valid marriages from other states that are between a man and a woman.”

The Court of Appeals extensively reviewed cases involving transsexuals from other states and countries. Rather than restate what *200 already has been well stated, the Court of Appeals’ discussion of cases is, in part, quoted here:

“The cases generally fall into three categories: cases dealing with the amendment of identification records, usually birth certificate name and/or sex changes; cases dealing with discrimination, most pointedly in the workplace; and cases dealing with marriage between a transsexual and a nontranssexual. An additional case which will be discussed deals with transsexuals and competition in sporting events. The analysis will follow the cases chronologically.

“The first case in the United States to deal with transsexualism involved a petition for a change of sex on a birth certificate. In Mtr. of Anonymous v. Weiner, 50 Misc. 2d 380, 270 N.Y.S.2d 319 (1966), a post-operative transsexual who had assumed the name and role of a female applied to the Bureau of Vital Statistics in the New York City Health Department for a new birth certificate. The Bureau requested guidance from tire Board of Health, who, in turn, called on a committee on public health of tire New York Academy of Medicine to investigate the issue and malee recommendations. The group called on to assist included gynecologists, endocrinologists, cytogeneticists, psychiatrists, and a lawyer.

“The transsexual’s application in Weiner was denied. In a resolution passed by the Board of Health, it was stated that ‘ “ ‘an individual bom one sex cannot be changed for the reasons proposed by the request which was made to us. Sex can be changed where there is an error, of course, but not when there is a later attempt to change psychological orientation of the patient and including such surgery as goes with it.’ ” ’ 50 Misc. 2d at 383.

“However, a civil court in New York, in 1968 and then again in 1970, granted an application for a change of name to a post-operative transsexual. Matter of Anonymous, 57 Misc. 2d 813, 293 N.Y.S.2d 834 (1968); Matter of Anonymous, 64 Misc. 2d 309, 314 N.Y.S.2d 668 (1970). In the 1968 case of Anonymous, a male-to-female transsexual petitioned the court to order the Bureau of Vital Statistics of the Department of Health of the City of New York to change his birth certificate to reflect a name and sex change. Based on New York law, the civil court lacked jurisdiction to change the sex on the birth certificate. 57 Misc. 2d at 813-14. Even so, the court still criticized the findings of the Academy.

“The court noted that all male organs had been removed and that the petitioner could no longer have sex as a male. The court stated that where, with or without medical intervention, the psychological sex and the anatomical sex are ‘harmonized,’ then the social sex or gender of the individual should conform to the harmonized status of the individual, and if such conformity requires a change in statistical information, the changes should be made. 57 Misc. 2d at 816.

“Later, in Mtr. of Hartin v. Dir. of Bur. of Recs., 75 Misc. 2d 229, 232, 347 N.Y.S.2d 515 (1973), the appellate court reaffirmed the decision in Weiner. We *201 can conclude that as of the filing date of Hartin, New York was stating that its birth records should reflect the sex of an individual as determined at birth.

“The next case, often cited, but perhaps colored by the fact that the parties lived together only 14 days of their 3-month marriage, is Corbett v. Corbett, 2 All E.R. 33 (1970), an English opinion dealing with transsexualism. One of the parties was a male-to-female transsexual and former female impersonator named April Ashley, who married Arthur Corbett. Arthur was a homosexual and transvestite ‘prone to all kinds of sexual fantasies and practices.’ 2 All. E.R. at 38. An English court in the probate, divorce, and admiralty division ruled that a marriage between a post-operative male-to-female transsexual and a male was void. 2 All. E.R. at 50.

“After the surgery, the respondent had her passport changed to reflect a female name. The respondent also had insurance papers changed to reflect her sex as female. An attempt to change the respondent’s birth certificate failed.

“In Corbett, some dispute existed as to whether the respondent was ‘intersexed,’ which was described then as a medical concept meaning ‘something between intermediate and indeterminate sex.’ 2 All E.R. at 43. The court rejected this notion, finding enough evidence to support the view that the respondent was bom a male. 2 All E.R. at 43.

“The court found that biological sex is determined at birth and cannot be changed by natural or surgical means. The respondent’s operation, the court stated, cannot affect the true sex. The only cases where the term ‘change of sex’ is appropriate, the court opined, is when there has been a mistake as to sex at birth that is subsequently revealed in a medical examination. 2 All E.R. at 47.

“In dealing with the argument that it is illogical for the court to treat the respondent as a male while other paperwork may have been changed to say differently, the court declared: ’Marriage is a relationship which depends on sex and not on gender.’ 2 All E.R. at 49. The court distinguished marriage from other social situations. 2 All E.R. at 49. Sex is clearly an essential determinant of the relationship 'in marriage, the court stated, as it is recognized as the union between a man and woman. The court established a three-part test in determining what is a person’s sex for purposes of the law, stating:

‘Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must ... be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. In other words, the law should adopt in the first place . . . the chromosomal, gonadal, and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention.’ 2 All E.R. at 48.

*202 “The unusual facts and die lack of a relationship in Corbett make it of questionable precedential value here. We recognize that it may have been the first time a court addressed these issues in the context of marriage.

“A change in thinking can perhaps be observed beginning in 1975 in Darnell v. Lloyd, 395 F. Supp. 1210 (D. Conn. 1975). The petitioner, called a male at birth, had a sex change operation and later requested that the Commissioner of Health change the sex on his birth certificate from male to female. The Commissioner refused to make such a change. The transsexual sued to have the Commissioner ordered to make this change, and the Commissioner moved for summary judgment.

“The court denied the motion for summary judgment, finding that the Commissioner of Health must show some substantial state interest in his policy of refusing to change a birth certificate to reflect current sexual status unless that was also the status at birth. 395 F. Supp. at 1214. The court found that this heightened level of scrutiny exists because the court felt that the fundamental right to marry could be implicated by the Commissioner’s decision. 395 F. Supp. at 1214.

“The court held that the Commissioner of Health had not met his burden of proof. 395 F. Supp. at 1214. It indicated that the exact anatomical condition of the petitioner at birth was unclear, as were all of the details of the operation and present circumstances. 395 F. Supp. at 1213.

“The case of M.T. v. J.T., 140 N.J. Super. 77, 355 A.2d 204, cert. denied 71 N.J. 345 (1976), deserves greater attention, in our view, than Corbett, Hartin, or Darnell.

“In M.T., a husband and wife were divorcing, and the issue was support and maintenance. The husband argued that he should not have to pay support to his wife because she was a male, making the marriage void. The issue before the court, similar to that before this court, was whether the marriage of a post-operative male-to-female transsexual and a male was a lawful marriage between a man and a woman. The court found that it was a valid marriage. 140 N.J. Super. at 90.

“In affirming the lower court’s decision, the court noted the English court’s previous decision in Corbett. 140 N.J. Super. at 85-86. The court rejected the reasoning of Corbett, though, finding that ‘for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psyche or psychological sex, tiren identity by sex must be governed by the congruence of these standards.’ 140 N.J. Super. at 87. Since the court found that the wife’s gender and genitalia were no longer ‘discordant’ and had been harmonized by medical treatment, the court held that the wife was a female at the time of her marriage and that her husband, then, was obligated to support her. 140 N.J. Super. at 89-90.

“The importance of the holding in M.T. is that it replaces the biological sex test with dual tests of anatomy and gender, where ‘for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the per *203 son’s gender, psyche or psychological sex, then identity by sex must be governed by the congruence of tírese standards.’ 140 N.J. Super. at 87.

“The M.T. court further stated:

Tn this case the transsexual’s gender and genitalia are no longer discordant; they have been harmonized through medical treatment. Plaintiff has become physically and psychologically unified and fully capable of sexual activity consistent with her reconciled sexual attributes of gender and anatomy. Consequently, plaintiff should be considered a member of tire female sex for marital purposes. It follows that such an individual would have the capacity to enter into a valid marriage relationship with a person of tire opposite sex and did so here. In so ruling we do no more than give legal effect to a fait accompli, based upon medical judgment and action which are irreversible. Such recognition will promote the individual’s quest for inner peace and personal happiness, while in no way dis-serving any societal interest, principle of public order or precept of morality.’ 140 N.J. Super. at 89-90.

“In M.T., the husband was arguing that he did not’ owe any support because his wife was a man. However, in the record, it was stated that the wife had a sex reassignment operation after meeting the husband. Her husband paid for the operation. The husband later deserted the wife and then tried to get out of paying support to someone he had been living with since 1964 and had been married to for over 2 years.

“In 1977, the Oregon Supreme Court was faced with the issue of whether a birth certificate of a transsexual should be changed to reflect a different name and sex. K. v. Health Division, 277 Or. 371, 560 P.2d 1070 (1977). In K., the court first looked to the statutes regarding birth certificate changes. The court found limited circumstances existed under the law for birth certificate amendments. The amendments, further, only dealt with name changes and only in the case of adoption or if a parent name changes. 277 Or. at 374-75.

“Despite the Court of Appeals finding that the birth certificate could be amended, the Oregon Supreme Court held that no such authority existed in Oregon to change the birth certificate to reflect a change in sex or name in this instance. 277 Or. at 374-76. The court stated that ‘it has not been demonstrated, by legislative history or otherwise, that it would be “at variance with the apparent policy” of either the legislature or the State Board of Health to deny the issuance of a “new birth certificate” to a transsexual.’ 277 Or. at 375. The court further stated:

Tn our opinion, it is at least equally, if not more reasonable, to assume that in enacting these statutes it was the intent of the legislature of Oregon that a “birth certificate” is an historical record of the facts as they existed at the time of birth, subject to the specific exceptions provided by statute.’ 277 Or. at 375.

“In so finding, the Supreme Court declared that ‘it is not for this court to decide which view is preferable. On the contrary, we hold that this is a matter of public policy to be decided by the Oregon legislature.’ 277 Or. at 376.

*204 “In 1984, the United States Court of Appeals, Seventh Circuit, analyzed an issue concerning transsexualism and workplace discrimination. In Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), cert. denied 471 U.S. 1017 (1985), a post-operative male-to-female transsexual who was a pilot for Eastern Airlines was fired in 1981, shortly after sex reassignment surgery. The transsexual sued the airline, alleging that the employer violated Title VII by discharging her from her position as a pilot. A federal district court agreed with the transsexual, finding discrimination against this person as both a female and a transsexual, and the airline appealed. 742 F.2d at 1082.

“The Seventh Circuit disagreed with the district court. The court stated that while it does not condone discrimination in any form, it must hold that Title VII does not protect transsexuals. 742 F.2d at 1084. First, the court stated: Tt is a maxim of statutory construction drat, unless otherwise defined, words should be given their ordinary, common meaning.’ 742 F.2d at 1085. The court explained that the words of Tide VII do not oudaw discrimination against a person who has a sexual identity disorder. It noted that the law clearly prohibits discrimination against women because they are women or men because they are men; it does not protect a person bom with a male body who believes himself to be female or a person bom with a female body who believes herself to be male. 742 F.2d at 1085.

“After noting that nothing was said in the legislative history about transsexuals, the court stated that it appears clear that Congress did not intend the legislation to apply to anything other than ‘the traditional concept of sex.’ 742 F.2d at 1085. Had Congress intended it to apply, surely it would have said so, the court explained. 742 F.2d at 1085. Thus, the court declined to expand the definition of ‘sex’ as used in Title VII beyond its ‘common and traditional interpretation,’ stating: “We agree with the Eighth and Ninth Circuits that if the term “sex” as it is used in Title VII is to mean more than biological male or biological female, the new definition must come from Congress.’ 742 F.2d at 1087. See Sommers v. Budget Marketing, Inc., 667 F.2d 748, 750 (8th Cir. 1982); Holloway v. Arthur Andersen & Co.,