Faculty Journal Articles and Book Chapters


This essay offers a critique of the Kansas Supreme Court's decision in In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002), and similar cases that hold that for purposes of the opposite-sex marriage rule, an individual's sex is determined at birth, is genetically fixed, and cannot be changed through surgery or hormone therapy. The result for transgendered individuals is a legal regime that is hostile to medical care that brings external sex characteristics into line with sexual identity. The result for society is a legal rule that is at odds with scientific opinion. Finally, the result for the opposite-sex marriage rule is that one type of same-sex marriage is replaced by another type of same-sex marriage (e.g., when a genetic male who undergoes sex-change therapy is permitted to marry a genetic female). The essay ends with a plea for a reconciliation of legal doctrine with established scientific and medical opinion, using the neurological criteria for the determination of death as an example of a (mostly) successful example of such a reconciliation.

Publication Title

Washburn Law Journal

Document Type



family law, health law, transsexual, transgender, sex, sexual identity



Digital Object Identifier (DOI)



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.