Victory in the Kantaras case: What does it mean?
|
Jamison Green offers a man's POV on life in the trans lane. Opinion,
advice and information from an internationally respected leader of the FTM community.
|
When the Kantaras case was being argued in Pasco County, Florida early in 2002, Claudia Wheeler, the attorney representing Michael Kantaras's estranged wife Linda, stated in her closing arguments: "If you open the door this much it's going to be like the barnyard door coming open. If Michael can be a male because Michael thinks he is a male, and because of some surgery, your honor, then we're headed for big trouble. It will create utter chaos. I believe the floodgates will be opened."
Circuit Court Judge Gerard O'Brien came out of retirement to hear three weeks of testimony in the complicated case, citing the important issues involved. On the surface, it might have been a straightforward divorce and child custody case, but because Michael Kantaras is an FTM, the decision hinged on whether he was legally male. Linda Kantaras, in trying to wrest their two children away from their father, had asserted that he had no rights because he was "born a woman," and therefore their 13-year marriage and any claim of his for custody should be invalid. Of course, she also wanted him to pay alimony, which would require an affirmation of the marriage. Silly girl. Silly girl's attorney. You can't have it both ways! (They later dropped this request in an amended counter-petition.)
With respect to issue of the rights of a transsexual person in civil matters that rely on a definition of sex, this case is similar to the Littleton case (in Texas) and the Gardiner case (in Kansas), in which two MTF women were denied the rights and privileges that would normally flow from their status as married women because their womanhood was stripped from them by the courts' presumption that sex is determined by chromosomes. In attempting to avoid a similar conclusion in this case, Mr. Kantaras's attorneys Karen Doering and Collin Vause, with guidance from FTM legal whiz Shannon Minter (who consulted with other legal strategists in the community), called a series of witnesses to validate Mr. Kantaras' social maleness, and medical experts to educate the court about the nature of transsexualism. The result was a clear victory for transsexual people.
Judge O'Brien's decision is rendered in an 809-page document released February 21, 2003: no wonder it took over a year to be completed. It's clear that he really thought about the issues. His brilliant conclusions of law give us some real meat to chew on with respect to further arguments for transsexual legitimacy. The fact that there were minor children involved in this case (and on the surface "only money" in the Littleton and Gardiner cases) must have played a huge part. It's easy to dismiss transsexual people who are claiming their share of an estate (Gardiner) or their right to sue for damages based on a spousal relationship (Littleton). It's not so easy to dismiss children who didn't ask for the parents they got, and who are much more vulnerable than adults. The court has a responsibility to look to the best interests of the children. In the Gardiner and Littleton cases no such compelling interest existed other than that of the combatants and anti-transsexual prejudice that could not be overcome.
The conclusions of law that Judge O'Brien made applying to the transsexual situation were exactly those that I had hoped he would make, namely:
"The marriage statute of Florida required the marriage applicants to be 18 years of age or older, and to be male and female. There is no definition in the statute of either "male" or "female." The statute does provide that the state has a compelling interest in "promoting" not only marriage but also responsible parenting."
"The marriage law of Florida clearly provides that marriage shall take place between one man and one woman. It does not provide when such a status of being a man or a woman shall be determined."
"There is no statutory requirement that the applicants shall prove their gender by producing a birth certificate at the time of their application. The gender of a person at birth as evidenced by a birth certificate may be relevant, but it is not by law dispositive. There is a presumption of correctness for most purposes, but it is a rebuttable presumption in the face of medical evidence."
"For the purpose of ascertaining the legal validity of a marriage between two adults of the opposite gender, the question of whether a person is a man or a woman should be determined as of the date of the application for the license because that is the critical time, and not later than the date of marriage. There is no rule of law or medical basis that requires the circumstances at the time of birth to be the sole factor to determine qualification for a license to marry because there are so many medical variables between birth and a fully grown adult over some 18 years, and it [is] on adults the obligation of marriage is placed, particularly, if there are to be children of the marriage."
"Chromosomes are only one factor in the determination of sex and they do not overrule gender or self identity, which is the true test or identifying mark of sex. Michael has always, for a lifetime, had a self-identity of a male. Dr. Walter Bockting, Dr. Ted Huang and Dr. Collier Cole all testified that Michael Kantaras is now and at the date of marriage was medically and legally "male."
That part about chromosomes not being the final arbiter of sex is the crucial part, along with the acknowledgment that the events of one's life can change a person. This recognition in a legal decision is, in fact, the floodgate that attorney Wheeler was worried about. What will rush though that gate is not chaos, but freedom for people to be who they are. On the surface this decision doesn't do much for the gay marriage issue, but the underlying reality is that as people realize that the institution of marriage is not harmed by more people participating in it (regardless of their sex, gender or sexual orientation), legislatures will revise the statutes to permit individuals to enter these types of contracts. I believe this is inevitable, and the Kantaras case will have assisted in that effort because of the educational opportunities that it created, and will continue to create. The general debate is far from over, but Judge O'Brien's decision is an important plank in the platform of self-determination that supports a truly free society. Other transsexual people can look to this decision for supporting arguments in establishing their rights to participate in the institutions of our society, like those of marriage and parenthood.
For Michael Kantaras' part, he is just glad it's over and he and his children, for whom he has primary physical custody, can get on with their lives. That's as it should be. His ex-wife, Linda, could try to appeal the ruling and seek to have it overturned; if that happened it would be miserable for Michael. All we can do is hope that she's had enough, and that no crusading attorneys decide they want to make a name for themselves by destroying the legal recognition that Michael Kantaras has now won for himself and for all of us.
|
|
|
Community Centers
Message Boards
