The Indiana Court of Appeals ruled Tuesday that Indiana driver’s licenses do not have to be issued with a nonbinary ‘X’ option. Photo illustration by Casey Smith for Indiana Capital Chronicle.

By Casey Smith
Indiana Capital Chronicle

INDIANA — The Indiana Bureau of Motor Vehicles does not have to issue a nonbinary option on driver’s licenses and identification cards, per an Indiana Court of Appeals ruling on Tuesday, April 9.

The BMV began recognizing a third gender on licenses with an “X” — meaning “not specified” — in 2019, under an administrative rule. But the next year, then-Attorney General Curtis Hill released an advisory opinion saying the agency didn’t have the authority to do so.

In response, the BMV then halted the practice and 13 nonbinary Hoosiers sued. A Monroe County trial judge ruled against the agency, forcing it to reinstate its prior policy of issuing driver’s licenses with an X. Attorney General Todd Rokita’s office then appealed the case to the Indiana Court of Appeals.

The trial court decision was reversed unanimously by a panel of three state appellate judges on Tuesday, remanding the case with instructions to dissolve the injunction against the BMV and enter summary and declaratory judgments for the agency consistent with the opinion.

“Until the General Assembly determines otherwise, we hold that ‘gender’ in Title 9 of the state statutory scheme means ‘sex,’” Senior Judge Randall Shepard wrote in the opinion for the appellate court.

Shepard, a former Indiana Supreme Court Chief Justice, additionally concluded that the trial court erred in granting summary judgment to the appellees on their claim that BMV violated the Administrative Rules and Procedures Act by ceasing to issue identification credentials with non-binary gender designations.

He noted in the opinion that the appellees argue “gender” to mean “gender identity,” while the BMV defines “gender” as synonymous with “sex.”

“In sum, general-language dictionaries define ‘gender’ as ‘sex.’ They further state that typically there is no clear delineation between the two terms and when a distinction is made between them, it proves to be problematic,” Shepard wrote. “Further, our examination suggests the legislature incorporated the term “gender” into our state statute simply to comply with the federal REAL ID Act, and it has not embarked on creating a new gender designation, which it alone has the authority to do.”

The BMV further claimed the trial court was wrong in concluding that the agency’s refusal to issue a non-binary designation on state credentials violates the appellees’ 14th Amendment right to equal protection “by impermissibly treating them differently from persons who identify as binary.”

To the point, the ruling said the appellees “fail to clearly demonstrate this classification is arbitrary and irrational in order to overcome the presumption of constitutionality.”

Additionally, the appellate court found the plaintiffs’ claim that their due process rights were infringed upon when they were “forced to select a binary designation for their state credentials that is inconsistent with their gender status” — possibly revealing private health information — “seems to be speculative.”

“They assert that when choosing between the binary designations for their credentials, non-binary applicants ‘will likely understand’ they must select their sex assigned at birth and that ‘[i]n certain instances,’ this disclosure will reveal an applicant’s non-binary status,” Shepard wrote in the opinion. “And finally, it seems that the use of a non-binary designation such as ‘X’ on their credentials discloses the Appellees’ gender status in the same manner they are attempting to avoid.”

As such, the earlier summary judgment ruling on the due process claim was also overturned.

The plaintiffs in the case can appeal the ruling to the Indiana Supreme Court.