BMV doesn’t have to include third-gender option on driver’s licenses, court rules

(IL file photo)

The Monroe Circuit Court erred when it ordered the Indiana Bureau of Motor Vehicles and its commissioner to include a third-gender option on driver’s licenses and identification cards, the Indiana Court of Appeals ruled Tuesday.

In 2019, the BMV began recognizing a third gender on state driver’s licenses and identification cards. The option was represented by an “X” that meant “Not Specified.”

In 2020, the BMV stopped offering or processing transactions with the gender indicator of “X” and denied the applications of several Hoosiers seeking the designation. The applicants then sought administrative review of the denial. The Administrative Law Judge affirmed the BMV’s denial in February 2021.

In June 2023 the appellees filed a complaint against the BMV seeking declaratory and injunctive relief from the BMV’s binary-only policy.

The complaint alleged violations of the Administrative Rules and Procedures Act, the 14th Amendment’s Equal Protection and Due Process Clauses, and the First Amendment. It included a petition for judicial review of the ALJ’s decision.

The BMV moved to dismiss the complaint.

The trial court granted the motion to the First Amendment claim but denied the rest of the motion. It also denied the BMV’s motion for summary judgment and granted the appellees’ petition for judicial review and motion for summary judgment.

The court then entered a declaratory judgment and permanently enjoined BMV from refusing to allow non-binary designations on state credentials.

The BMV then appealed.

Senior Judge Randall Shepard wrote the opinion for the appellate court and Judges Cale Bradford and Paul Felix concurred in the result.

The first issue on appeal was whether the court erred by granting judicial review.

Shepard cited ResCare Health Servs., Inc. v. Ind. Fam. & Soc. Servs. Admin. – Off. of Medicaid Pol’y & Plan., 21S-MI-372, in his reasoning.

“Thus, we conclude that while the petition for judicial review was untimely filed and therefore improvidently granted, the action for declaratory judgment and injunctive relief as it relates to Simmons, S.R., K.H, A.G., and S.D. may nevertheless proceed as it is a distinct action,” Shepard wrote.

The next issue brought to the appellate court was whether the court erred in granting summary judgment for the appellees.

Shepard first addressed the ARPA violation and noted how the appellees contend “gender” to mean “gender identity” whereas 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 court concluded that the trial court erred in granting summary judgment to the appellees on their claim that the BMV violated ARPA by ceasing to issue identification credentials with non-binary designations.

The BMV also claimed the trial court erred 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.

“The Appellees, although denouncing BMV’s proffered objectives, fail to clearly demonstrate this classification is arbitrary and irrational in order to overcome the presumption of constitutionality. In the absence of such a showing by the Appellees, we find these to be legitimate government interests and conclude that the binary-only policy is rationally related to these goals,” Shepard wrote.

The appellate court reversed the trial court’s entry of summary judgment in favor of the appellees on their equal protection claim.

Lastly, the BMV argued that the trial court erred when it concluded the appellees’ rights were infringed upon when they were forced to select a binary designation for their state credentials that is inconsistent with their gender status, thereby possibly revealing private health information.

“In addition, their due process claim 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. “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.”

The court found the trial court erred in granting summary judgment for the appellees on their substantive due process claim.

The court remanded the case with instructions to dissolve the injunction against the BMV and enter summary judgment and declaratory judgment for the BMV consistent with the opinion.

Tuesday’s appellate court ruling drew a quick reaction online from Indiana Attorney General Todd Rokita.

“‘X’ will NOT mark the spot on Indiana driver’s licenses. Today, the court agreed that in Indiana your credentials reflect your sex – not gender identity,” Rokita posted on X.

The case is Indiana Bureau of Motor Vehicles and Joseph B. Hoage, in his official capacity as Commissioner of the Indiana Bureau of Motor Vehicles v. Fitz Simmons, A.G., S.D., C.O., K.W., W.A., B.W., K.H, S.R., J.T., K.O., S.O., and J.L., 23A-PL-899.