This is part of the appeal courts discision in this case. It is too long to fit in the whole case. But this the best I can do. It tells us why we need new laws.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LINDA G. KANTARAS, )
)
Appellant, )
)
v. ) Case No. 2D03-1377
)
MICHAEL J. KANTARAS, )
)
Appellee. )
__________________________________ )
Opinion filed July 23, 2004.
Appeal from the Circuit Court for Pasco
County; Gerrard O'Brien, Senior Judge.
Mathew D. Staver, Erik W. Stanley, and
Anita L. Staver of Liberty Counsel,
Longwood, for Appellant.
Rebecca Harrison Steele of Law Office
of Rebecca Harrison Steele, P.A., Tampa;
Karen M. Doering, Tampa; and Collin D.
Vause, Clearwater, for Appellee.
FULMER, Judge.
.........
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The words "sex," "male," and "female" in everyday
understanding do not encompass transsexuals. The plain,
ordinary meaning of "persons of the opposite sex"
contemplates a biological man and a biological woman and
not persons who are experiencing gender dysphoria. A
male-to-female post-operative transsexual does not fit the
definition of a female. The male organs have been removed,
but the ability to "produce ova and bear offspring" does not
and never did exist. There is no womb, cervix, or ovaries,
nor is there any change in his chromosomes. As the
Littleton court noted, the transsexual still "inhabits . . . a male
body in all aspects other than what the physicians have
supplied." 9 S.W.3d at 231. J'Noel does not fit the common
meaning of female.
Id. at 135.
In response to the court of appeals' conclusion that a question remained
as to whether J'Noel was a female at the time the license was issued for the purpose of
the statute, the supreme court stated:
We do not agree that the question remains. We view
the legislative silence to indicate that transsexuals are not
included. If the legislature intended to include transsexuals,
it could have been a simple matter to have done so. We
apply the rules of statutory construction to ascertain the
legislative intent as expressed in the statute. We do not
read into a statute something that does not come within the
wording of the statute.
Id. at 136 (citation omitted). The supreme court stated further:
[T]he legislature clearly viewed "opposite sex" in the narrow
traditional sense. . . . We cannot ignore what the legislature
has declared to be the public policy of this state. Our
responsibility is to interpret [the statute] and not to rewrite it.
. . . If the legislature wishes to change public policy, it is free
to do so; we are not. To conclude that J'Noel is of the opposite
sex of Marshall would require that we rewrite [the statute].
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Id. at 136-37. The supreme court concluded that "the validity of J'Noel's marriage to
Marshall is a question of public policy to be addressed by the legislature and not by this
court." Id. at 137.
In Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999), the Texas court
found a marriage between a man and a postoperative male-to-female transsexual void.
Christie Littleton, the transsexual, married Jonathon Mark Littleton in Kentucky in 1989.
Id. at 225. After Jonathon's death in 1996, Christie sued Dr. Prange for medical
malpractice in her capacity as Jonathon's surviving spouse. Id. The doctor moved for
summary judgment asserting that Christie was a man and could not be the surviving
spouse of another man. Id. The trial court agreed and granted summary judgment. Id.
The appeals court concluded that the case presented a pure question of
law. Id. at 230.
In our system of government it is for the legislature,
should it choose to do so, to determine what guidelines
should govern the recognition of marriages involving
transsexuals. . . .
It would be intellectually possible for this court to write
a protocol for when transsexuals would be recognized as
having successfully changed their sex. . . . But this court
has no authority to fashion a new law on transsexuals, or
anything else. We cannot make law when no law exists: we
can only interpret the written word of our sister branch of
government, the legislature.
Id. at 230. The court concluded "as a matter of law, that Christie Littleton is a male. As
a male, Christie cannot be married to another male. Her marriage to Jonathon was
invalid, and she cannot bring a cause of action as his surviving spouse." Id. at 231.
New York courts have also refused to recognize transsexual marriage.
See Anonymous v. Anonymous, 325 N.Y.S.2d 499 (N.Y. App. Div. 1971); Frances B. v.
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Mark B., 355 N.Y.S.2d 712 (N.Y. App. Div. 1974). In Frances B., the plaintiff, a woman,
filed an annulment action claiming that, prior to the marriage, the defendant (a
postoperative female-to-male transsexual) fraudulently represented himself as a male,
although the defendant did not have male sex organs and was still a woman. 355
N.Y.S.2d at 713. The defendant moved to amend his answer to include a counterclaim
for divorce on the ground of abandonment. Id. at 714. The court, noting the public
policy that the marriage relationship exists for the purpose of begetting offspring,
concluded that the defendant's sex reassignment surgery did not enable the defendant
to perform male sexual functions in a marriage:
Assuming, as urged, that defendant was a male
entrapped in the body of a female, the record does not show
that the entrapped male successfully escaped to enable
defendant to perform male functions in a marriage.
Attempted sex reassignment by mastectomy, hysterectomy,
and androgenous hormonal therapy, has not achieved that
result.
Id. at 717. Thus, the court concluded that, as a matter of law, the defendant had no
basis to counterclaim for divorce. Id. at 716-17.
There is one case in the United States that has permitted transsexual
marriage. In M.T. v. J.T., 355 A.2d 204 (N.J. 1976), the husband sought an annulment
on the ground that his wife was a male-to-female transsexual. The New Jersey court
rejected the husband's argument, upheld the validity of the marriage, and affirmed a
judgment of the lower court obligating the husband to support the transsexual as his
wife. 355 A.2d at 211. After considering the medical evidence, the court held that when
a transsexual person has successfully undergone sex-reassignment and can fully
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function sexually in the reassigned sex, then the person could marry legally as a
member of the sex finally indicated. Id. at 210-11.
In sum, it has been established that an individual
suffering from the condition of transsexualism is one with a
disparity between his or her genitalia or anatomical sex and
his or her gender, that is, the individual's strong and
consistent emotional and psychological sense of sexual
being. A transsexual in a proper case can be treated
medically by certain supportive measures and through
surgery to remove and replace existing genitalia with sex
organs which will coincide with the person's gender. If such
sex reassignment surgery is successful and the
postoperative transsexual is, by virtue of medical treatment,
thereby possessed of the full capacity to function sexually as
a male or female, as the case may be, we perceive no legal
barrier, cognizable social taboo, or reason grounded in
public policy to prevent that person's identification at least for
purposes of marriage to the sex finally indicated.
Id. at 210-11.
In the case before us, the trial court relied heavily on the approach taken
by an Australian family court in In re Kevin, (2001) 28 Fam. L. R. 158, aff'd, 30 Fam. L.
R. 1 (Austl. Fam. Ct. 2003) (pagination of Lexis printout), which the trial court believed
"correctly states the law in modern society's approach to transsexualism." In that case,
the Australian court took the view that courts must recognize advances in medical
knowledge and practice and found that a female-to-male transsexual should be
considered a man for purposes of marriage. Australia prohibits same-sex marriage;
nevertheless, the court ruled that a marriage between a woman and a postoperative
female-to-male transsexual was valid. In affirming the trial court, the Family Court of
Australia stated in its conclusion:
-12-
Should the words "man" and "marriage" as used in
the Marriage Act 1961 bear their contemporary ordinary
everyday meaning?
. . . .
Unless the context requires a different interpretation,
the words "man" and "woman" when used in legislation have
their ordinary contemporary meaning according to Australian
usage. That meaning includes post-operative transsexuals
as men or women in accordance with their sexual
reassignment . . . .
30 Fam. L.R. 1 at 48.
On appeal, Michael argues that the trial court properly adopted the
approach taken by the Australian court. He further argues that the approach taken by
the majority of courts in the United States that have addressed the issue of transsexual
marriage ignore modern medical science. We disagree.
The controlling issue in this case is whether, as a matter of law, the
Florida statutes governing marriage authorize a postoperative transsexual to marry in
the reassigned sex. We conclude they do not. We agree with the Kansas, Ohio, and
Texas courts in their understanding of the common meaning of male and female, as
those terms are used statutorily, to refer to immutable traits determined at birth.
Therefore, we also conclude that the trial court erred by declaring that Michael is male
for the purpose of the marriage statutes. Whether advances in medical science support
a change in the meaning commonly attributed to the terms male and female as they are
used in the Florida marriage statutes is a question that raises issues of public policy that
should be addressed by the legislature. Thus, the question of whether a postoperative
transsexual is authorized to marry a member of their birth sex is a matter for the Florida
legislature and not the Florida courts to decide. Until the Florida legislature recognizes
-13-
sex-reassignment procedures and amends the marriage statutes to clarify the marital
rights of a postoperative transsexual person, we must adhere to the common meaning
of the statutory terms and invalidate any marriage that is not between persons of the
opposite sex determined by their biological sex at birth. Therefore, we hold that the
marriage in this case is void ab initio.
Our holding that the marriage is void ab initio does not take into
consideration the best interests of the children involved in this case. While we
recognize that the trial judge went to great lengths to determine the best interests of the
children, the issue of deciding primary residential custody was dependent on the trial
court's conclusion that the marriage was valid. We do not attempt to undertake a
determination of the legal status of the children resulting from our conclusion that the
marriage is void. The legal status of the children and the parties' property rights will be
issues for the trial court to examine in the first instance on remand.
Reversed and remanded with directions to grant the counterpetition for
annulment declaring the marriage between the parties void ab initio.
COVINGTON and WALLACE, JJ., Concur.
The argument behind this conclusion is included in the rest of the case.
Read this and decide for yourselves.
I think we have a long way to go for equality.
