dissenting.
Although the standard for reviewing a trial court’s order for summary judgment is well-settled in this state, that standard is not addressed in the majority’s opinion. To prevail on a motion for summary judgment, the movant must show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In the instant case, this standard required Dr. Prange to prove that Christie Littleton was not the surviving spouse of Jonathon Littleton. To disprove this element of the plaintiffs cause of action, Dr. Prange produced only Christie’s original birth certificate. This evidence, the majority concludes, is enough to prove as a matter of law that Christie Littleton is a male and that, as a result, Christie is not Jonathon’s surviving spouse.
While a birth certificate would ordinarily establish a person’s gender conclusively, Christie presented significant controverting evidence that indicated she was female. This evidence was so substantial that it raised a genuine issue of material fact about whether she was Jonathon’s surviving spouse. In an ordinary summary judgment case, such controverting evidence would prevent this court from concluding that the movant had met its burden on a motion for summary judgment. But in this rather extraordinary case, the majority has determined that there are no significant facts that need to be determined and concluded that Christie is a male as a matter of law. Despite this conclusion, there is no law to serve as the basis of this conclusion.
The absence of controlling law precludes a judgment as a matter of law in this case. Notably, neither federal nor state law defines how a person’s gender is to be determined. Our state legislature has not determined the guidelines that should govern the recognition of marriages involving transsexuals. Particularly material to this case, the legislature has not addressed whether a transsexual is to be considered a surviving spouse under the Wrongful Death and Survival Statutes. In an ordi*233nary ease, the absence of such law would prevent this court from concluding that the movant was entitled to judgment as a matter of law. In the instant case, however, the majority relies on the absence of statutory law to conclude that this case presents a pure question of law that must be decided by this court rather than to allow the case to proceed to trial; that is, whether Christie is male or female.
On its surface, the question of whether a person is male or female seems simple enough. Complicated with the issues of surgical alteration, sexual identity, and same-sex marriage, the answer is not so simple. To answer the question, the majority assumes that gender is accurately determined at birth. Consider the basis for such a determination. Traditionally, an attending physician or mid-wife determines a newborn’s gender at birth after a visual inspection of the newborn’s genitalia. If the child has a penis, scrotum, and testicles, the attendant declares the child to be male. If the child does not have a penis, scrotum, and testicles, the attendant declares the child to be female. This declaration is then memorialized by a certificate of birth, without an examination of the child’s chromosomes or an inquiry about how the child feels about its sexual identity. Despite this simplistic approach, the traditional method of determining gender does not always result in an accurate record of gender.
Texas law recognizes that inaccuracies occur in determining, or at least recording, gender. By permitting the amendment of an original birth certificate upon satisfactory evidence, Texas law allows these inaccuracies to be corrected. T-ex. Health & Safety Code Ann. § 191.028 (Vernon 1992). Indeed, Christie’s gender was lawfully corrected by an amended birth certificate months before the trial court ruled on Dr. Prange’s motion for summary judgment. Notably, the amended birth certificate reflects the original filing date of April 10, 1952, the original date of birth, and an issuance date of August, 14, 1998. Retention of the original filing date indicates that the amended birth certificate has been substituted for the original birth certificate in the same way an amended pleading is substituted for an original pleading in a civil lawsuit.
Under the rules of civil procedure, a document that has been replaced by an amended document is considered a nullity. Rule 65 provides that the substituted instrument takes the place of the original. Tex.R. Civ. P. 65. Although neither a state statute nor case law address the specific effect of an amended birth certificate, many cases address the effect of an amended pleading. See Randle v. NCNB Texas Nat’l Bank, 812 S.W.2d 381, 384 (Tex.App.—Dallas 1991, no writ) (striking of second amended pleading restored first amended pleading); Wu v. Walnut Equip. Leasing Co., 909 S.W.2d 273, 278 (Tex.App.—Houston [14th Dist.] 1995) (unless substituted instrument is set aside, the instrument for which it is substituted is no longer considered part of the pleading), rev’d on other grounds, 920 S.W.2d 285 (Tex.1996). Under this authority, an amended instrument changes the original and is substituted for the original. Although a birth certificate is not a legal pleading, the document is an official state document. Amendment of the state document is certainly analogous to an amended legal pleading. In this case, Christie’s amended birth certificate replaced her original birth certificate. In effect, the amended birth certificate nullified the original birth certificate. As a result, summary judgment was issued based on a nullified document. How then can the majority conclude that Christie is a male? If Christie’s evidence that she was female was satisfactory enough for the trial court to issue an order to amend her original birth certificate to change both her name and her gender, why is it not satisfactory enough to raise a genuine question of material fact on a motion for summary judgment?
*234Granted the issues raised by this ease are best addressed by the legislature. In the absence of law addressing those issues, however, this court is bound to rely on the standard of review and the evidence presented by the parties. Here, the stipulated evidence alone raises a genuine question about whether Christie is Jonathon’s surviving spouse. Every case need not be precedential. In this case, the court is required to determine as a matter of law whether Christie is Jonathon’s surviving spouse, not to speculate on the legalities of public policies not yet addressed by our legislature. Under a focused review of this case, a birth certificate reflecting the birth of a male child named Lee Cavazos does not prove that Christie Littleton is not the surviving spouse of Jonathan Lit-tleton. Having failed to prove that Christie was not Jonathon’s surviving spouse, Dr. Prange was not entitled to summary judgment. Because Christie’s summary judgment evidence raises a genuine question of material fact about whether she is the surviving spouse of Jonathon Littleton, I respectfully dissent.