Commentary on the Littleton Case
in regard to Gardiner Case


After the first reading of In Re Gardiner by the Kansas Appellate Court:

Dear Friends,

If you have not read the decision, it may be gotten from http://www.kscourts.org/kscases/ctapp/2001/20010511/85030.htm [or on this website at crtdec4.htm].

When printed out, it is approximately 28 pages. It is 28 enjoyable-to-read pages, especially when considered against the simplicity and rigidity of the Littleton decision. Indeed, the very first sentence in the "Conclusion" by the Kansas Appeals Court read, "This court rejects the reasoning of the majority in the Littleton case as a rigid and simplistic approach to issues that are far more complex than addressed in that opinion. "

I was pleased when the Section on Full Faith and Credit was making a distinction between "correction" and "change." Although this point was not critical in this decision, I still believe it will be critical in future cases, and I hope that in the future, the lawyers fighting those future cases will pick up on this distinction as I wrote extensively on in the 7 Wm. & Mary J. Women & L. 133 (2000) article (free on my website http://transgenderlegal.com ) and as both Alyson Meiselman and I wrote extensively on it in 64 Alb. L. Rev. 1031 (2001) article (also free on my website).

I was also pleased when the Section on Full Faith and Credit was discussion the findings in the amendment of birth certificates. This was covered extensively by Alyson Meiselman and me in 64 Alb. L. Rev. 1031 (2001) article (also free on my website). I hope that those guidelines in our article are used for future birth certificate amendments until Littleton is completely overruled.

Finally, notice the language in the "Conclusion" which reads, "The listed criteria we adopt as significant in resolving the case before us should not preclude the consideration of other criteria as science advances." Yes, they wrote the phrase "the consideration of other criteria as science advances." This is the theme of another article that has already been written and accepted for publication and will be out in the fall. The lead author is Alyson Meiselman. Both Katrina Rose and I are listed as authors as well. When it comes out, I will let you know.

I feel especially good about the overall decision in re Gardiner. After it reversed and remanded, the Kansas Appellate Court listed what it was looking for in the future -- with guidance from Professor Greenberg's article, which the Littleton Court had and ignored -- and I must say that it is a privilege to know Professor Greenberg. Julie, it remains an honor to know you: YOU DID SUPER!

Please notice that the Littleton decision is not dead, but it is doubtful that the mean spirited effects of it will spread much further. And as the Texas Legislature is near an end, and specially chose not to bring the House Bill and the Senate Bill that both would have overruled Littleton in Texas, therefore, Littleton remains law in the 32 counties of the Texas 4th Court of Appeals in San Antonio.

What that means is that a transsexual gay male couple where one is FTM that wants to get married can still do so in San Antonio. And a transsexual lesbian women couple where one is MTF (like the Wicks couple -- see my website) can still do so in San Antonio. From ANY state or country, not need to be from Texas!

Let me know if you want to do so and if you want my assistance.

Phyllis Randolph Frye
05/12/01


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Last revised: Sunday, May 13, 2001 03:29 PM

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