Transgender Case Focuses on How Sex Is Determined

Lawrence Morahan | Senior Staff Writer | Thursday, July 24, 2003

Transgender Case Focuses on How Sex Is Determined

(CNSNews.com) - A conservative legal watchdog group has decided to appeal a decision in which a Florida judge granted custody of two children to a female-to-male transsexual, ruling the individual is a man under Florida law.

Liberty Council, a civil liberties legal defense organization, said the court erroneously concluded that sex is determined "psychologically" when it ruled in favor of Michael Kantaras, born Margo Kantaras, after a bitter custody battle with his wife, Linda.

By allowing someone to subjectively define their sex, the court sets a precedent for similar rulings on race; for example a Caucasian who thinks he or she is African American, or vice versa, said Mathew Staver, president and general counsel of Liberty Council.

"This case could really undermine all objectivity within the legal system, and we believe that it has great importance to not only the legal system, but also to marriage and to many other classifications that we recognized as protected statuses, such as national origin or race and many others," said Staver, who is representing Linda Kantaras.

In a legally unprecedented ruling in February, Judge Gerard O'Brien said Michael Kantaras could adopt his wife's teenage son and be listed as the father of a child the wife conceived during the marriage with sperm donated by Michael's brother.

Staver is arguing that Michael Kantaras was not legally a man when the couple married in 1989. The marriage was invalid since Florida bans same-sex marriages under its Defense of Marriage Act, Staver said.

As a female, Michael Kantaras had a sex change operation, which included a mastectomy and hysterectomy, and underwent hormone treatment at a clinic in Texas in 1986. His Ohio birth certificate reflects his 1959 birth as a female named Margo, but an Ohio court ordered the document be changed to show his new gender and new name.

In an 809-page ruling and divorce decree, O'Brien ruled that under Florida law, there was no statutory requirement that marriage license applicants had to prove their sex.

The law "provides that marriage shall take place between one man and one woman. It does not provide when such status of being a man or woman shall be determined," O'Brien ruled.

O'Brien's decision was hailed by homosexual advocacy groups as groundbreaking. The ruling could provide a legal definition of gender in the state and give non-biological parents a legal foundation to seek visitation or custody, they said.

Linda knew of Michael's sex change operation when the couple married in 1989. During the marriage, Linda became a Christian and realized the relationship was improper, Staver said. The marriage dissolved in 1998 when Michael Kantaras became involved with another woman.

Staver said more than marriage was at stake in the case.

"The trial judge erroneously ruled that gender is determined primarily by your mind as opposed to biologically, and consequently, if you think you are a female or you think you are a male - even though your biological sex is opposite - the court essentially has ruled that that's what you become.

"Therefore, two females - one thinking that she is a male - could marry and not be in violation of a law that says marriage is between one man and one woman," Staver said.

Liberty Counsel is in the process of putting together the brief, which will be due September 1. Sometime later this year or early next year, the case will be argued at the Second District Court of Appeals in Lakeland, Fla.

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