Sex, Marriage, Medicine, and Law: 'What Hope of Harmony?'

Abstract:     
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.

Number of Pages in PDF File: 12

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

Accepted Paper Series