Rejecting a lower-court ruling declaring gender a “state of mind,” a Florida appeals court decided yesterday the state does not recognize transsexual marriage.

Florida’s 2nd District Court of Appeals overturned a decision by lower-court Judge Gerard O’Brien in Pasco County which held that Michael Kantaras — who was born female with the name Margo — desires to be a man, and therefore her marriage to Linda Kantaras did not violate Florida’s Defense of Marriage Act, which limits marriage to only one man and one woman.

Yesterday’s ruling declared the marriage void.

Linda, represented by the public-interest group Liberty Counsel, decided she wanted the marriage nullified after becoming a Christian and concluding that her relationship was improper.

Linda Kantaras “screamed with excitement upon hearing of this decision,” said Mathew Staver, president and general counsel of Liberty Counsel.

“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 and represents a huge setback for the transsexual and homosexual agenda. A few hormones and plastic surgery do not change a person’s sex, which is an immutable trait fixed at birth.”

Michael Kantaras, represented by the National Center for Lesbian Rights in San Francisco, filed for divorce, seeking custody of two children born through artificial insemination.

After undergoing a sex-change operation, Michael Kantaras tried to change her Ohio birth certificate from “female” to “male” but was blocked by a state judge.

Linda Kantaras knew of Michael’s sex operation when they met in Florida and later obtained a marriage license in 1989, representing Michael as male.

Marriage a ‘state of mind’

The lower-court judge O’Brien had ruled Feb. 21, 2003, that a person’s sex primarily is psychological and thus Michael should be considered male.

His opinion stated, “Some jurisdictions prefer to remain in the 19th Century understanding of binary sex that saw male and female as distinct, immutable and opposite.”

Marriage, the judge said, is “fundamentally a state of mind.”

O’Brien determined it was “unethical” to change Michael’s mind to match the body, asserting it was proper for her to mutilate her body to match her mind.

At the same time, the judge found Linda’s Christian beliefs problematic because she refused to accept transsexualism, thus potentially driving a wedge between the children and Michael.

Despite the unanimous testimony that the children want to live with Linda, O’Brien removed primary custody from Linda to Michael.

The appeals court rejected O’Brien’s argument, stating that Florida agrees “with the Kansas, Ohio, and Texas courts in their understanding of the common meaning of male and female … to refer to immutable traits determined at birth.”

The opinion also stated, “[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.”

In addition, the court ruled that the question of whether transsexuals are authorized to marry a member of their birth sex “is a matter for the Florida legislature and not the Florida courts to decide.”

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