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What is a man? Court has an answer

Michael Kantaras is not a man, judges say, despite a sex change that makes him seem to be. The ruling ultimately may cost him his children.

By WILLIAM R. LEVESQUE
Published July 24, 2004


ST. PETERSBURG - A person's sex is established at birth so transsexuals cannot have their change in gender legally recognized or marry in Florida, a state appeals court ruled Friday.

In a case with potentially far-reaching implications, the 2nd District Court of Appeal in Lakeland said the 1989 marriage between a woman and a transsexual male was legally invalid because it amounted to a same-sex union barred by state law.

The ruling overturned a Pinellas-Pasco circuit judge's 2003 decision in the case of transsexual Michael Kantaras. That decision said Kantaras, who was named Margo at birth, was legally a man. The issue could be decided by the Florida Supreme Court.

The appeals court said gender is determined at birth and is "immutable." Only the Florida Legislature, the court said, can grant transsexuals the right to legally change their sex and marry.

Until lawmakers deem otherwise, the appeals court said, "we must ... invalidate any marriage that is not between persons of the opposite sex determined by their biological sex at birth."

For Kantaras, 45, the ruling may jeopardize his custody of the two children, ages 15 and 12, he raised with Linda Kantaras, 36. She knew Michael was a transsexual when they married. Both live in Holiday in Pasco County.

Floridians are not required to prove gender to obtain a marriage license, so it's unknown how many marriages the ruling may affect.

In 1998, Michael Kantaras filed for divorce. He had adopted Linda's oldest child, now 15, shortly after the boy's birth. Michael also was named the father of the younger child, now 12, who was conceived through artificial insemination with donor sperm from Michael's brother. He was granted custody of the children last year.

Karen Doering, a lawyer with the National Center for Lesbian Rights, which represents Michael Kantaras, said Friday that his legal team would ask the appeals court to send the case to the Florida Supreme Court as a matter of great public importance.

"This decision really throws common sense out the window and stands logic on its head," Doering said. "They basically ignored the unrefuted medical evidence that Michael is a male. It's cruel and unusual to allow somebody to undergo sex-reassignment surgery and then not recognize their new sex."

The issue of a transsexual's legal gender has never been addressed by the Florida Supreme Court. Around the nation, courts have typically ruled that sex cannot be legally altered. A New Jersey court once ruled otherwise in 1976, ordering a husband to pay support for his transsexual wife.

Conservatives applauded the appeals court ruling Friday, saying it validated traditional marriage.

"Marriage is an indispensable foundational institution in our society" that shouldn't be redefined, said Ken Connor, former president of the Family Research Council. "Marriage transcends culture."

Mathew Staver, president and general counsel of Liberty Counsel, a group representing Linda Kantaras, also hailed the decision as a "huge setback for the transsexual movement."

"The law cannot permit a person to change their sex like one changes clothes," Staver said. "This case is a tremendous victory for traditional marriage and common sense. ... A few hormones and plastic surgery do not change a person's sex, which is an immutable trait fixed at birth."

But Tamara Lange, staff attorney for the American Civil Liberties Union's Lesbian and Gay Rights project, said the appeals court ruling ignores the physical realities of the sex change.

"It's a deeply disturbing decision to say someone who grew up knowing he was a male and was born into the wrong gender can't do anything to live his life and build his family the way he wants," Lange said. "It's a serious injustice."

In its ruling Friday, the appeals court did not decide custody of the Kantaras children.

Linda Kantaras' attorneys say custody should automatically revert to her.

"I feel relief and excitement," said Linda Kantaras, a teacher's aide. "I'm praising the Lord, and hopefully I can get my kids back really quickly."

But Michael Kantaras' attorneys said that's still for a circuit judge to decide.

Michael Kantaras, who underwent a sex change in 1987, did not return phone calls Friday.

Pinellas-Pasco Senior Judge Gerard O'Brien awarded Michael Kantaras custody of the children after noting Linda's anger problems and that she had violated court orders and interfered with his visitation.

In ruling Kantaras a man after a lengthy trial, O'Brien noted that to all appearances, he was a man.

"Michael is visibly male," O'Brien wrote. "He has a deep, masculine voice, a chin beard and a mustache, a thinning hair line and some balding, wide shoulders, muscular arms and the apparent shifting of fat away from the hips toward the stomach.

"He has a pronounced maleness that prompts one to automatically refer to Michael with the pronoun he or him."

In reversing O'Brien, however, the appeals court said, "Our references to Michael Kantaras as "he' throughout this opinion are not intended to carry a legal significance."

TRANSSEXUAL CONTROVERSY

1987 Michael Kantaras, named Margo at birth, undergoes sex change procedures.

1989 Michael Kantaras marries Linda Kantaras.

1998 Michael Kantaras files for divorce.

2003 Pinellas-Pasco Senior Judge Gerard O'Brien rules Michael Kantaras is legally a man. He awards Michael custody of two children he raised with Linda.

FRIDAY The 2nd District Court of Appeal in Lakeland overturns O'Brien's decision, ruling the Kantaras marriage was legally invalid because it amounted to a same-sex union barred by state law. That may jeopardize Michael's custody of the two children.