AG Hill: State agencies can’t use nonbinary gender marker

Neither the Indiana BMV nor the Health Department has the authority to allow Hoosiers to designate a nonbinary gender on official documents without express permission from the Legislature, Indiana Attorney General Curtis Hill says.

Hill released an official opinion Monday in response to an inquiry from Sen. Jim Tomes, who authored legislation this year to prohibit documents such as driver’s licenses and official IDs from displaying nonbinary gender options.

The Indiana Bureau of Motor Vehicles and Indiana State Department of Health cannot, on their own, create rules allowing for those options, Hill wrote.

“No state agency has the authority to create a third non-binary gender because that authority has not been granted to any agency by the Indiana General Assembly,” Official Opinion 2020-3 reads. “Only the General Assembly may determine whether the State of Indiana will codify any non-binary designations on State documents.”

Hill’s opinion comes after the BMV last year proposed a rule that would have allowed Hoosier drivers to describe their gender as nonbinary on their driver’s licenses or IDs, as long as they produced documentation proving a permanent gender change, such as an amended birth certificate. The ISDH would have had to sign off on attempts to be recognized as anything other than their gender at birth.

Hill refused to sign off on the rule, citing insufficient public notice, and the BMV in October put the policy on hold. It then held a public hearing and accepted comments, which came in as 37 in favor of the rule and 642 against, Hill wrote. The BMV recalled the proposal in January.

Then in the 2020 General Assembly, Tomes, a Wadesville Republican, authored Senate Bill 74, which would have defined both “sex” and “gender” as meaning “male or female.” It also would have prohibited nonbinary gender designations on driver’s licenses or permits, ID cards, and photo-exempt ID cards.

Tomes’ bill did not get a hearing. Hill’s official opinion is addressed to Tomes and is labeled “RE: Senate Bill 74 and Definition of gender under the Indiana Code.”

Hill notes Indiana code requires the BMV to list a person’s “gender” on their official documents, while those credentials actually use the word “sex.” Thus, he said, “the BMV has equated gender with sex.”

“Gender” and “sex” aren’t explicitly defined in Indiana Code, the opinion continues, but “the ordinary and plain meaning, and … usage” of “gender” in statute is synonymous with “sex.”

“In contrast, actions by the ISDH or the BMV to create a third, non-binary gender designation seek to make gender equivalent to gender identity,” the opinion reads. “… Based on the dictionary definitions and court interpretations, it is clear that gender and sex were used synonymously in 2007, when the BMV statute was amended, and are treated as a binary option.”

To bolster his position, Hill cited Farrell v. Butler University, 421 F.3d 609, 616 (7th Cir. 2005), and Griffin v. Sisters of Saint Francis, Inc., 489 F.3d 838, 843 (7th Cir. 2007).

“Because the BMV requires gender to be included on licenses and gender, means sex in the Indiana Code, the BMV may not issue non-binary licenses. Similarly, because the ISDH is required to collect sex information, the ISDH lacks the requisite authority to create a third, non-binary gender marker to be used on state forms and documents.”

Further, Hill wrote that the health department cannot allow birth certificate changes without a rule promulgated under the Administrate Rules and Procedures Act. While the department’s authority does extend to name changes and gender, Hill wrote, those changes cannot be made without a court order.

The ISDH had proposed forms that created a process for changing a person’s gender, including changing to a nonbinary gender option. But the forms, Hill wrote, had the effect of law.

“They would have had general applicability, they would have been applied prospectively, they would have had the effect of law, and they would have affected the rights of a class. Such forms would have categorically expanded the law by adding a third gender option and authorizing actions, i.e. gender change, previously only allowed by court order. … Therefore, the draft and use of those state forms would have constituted a rulemaking action on the part of the ISDH.”

The opinion concludes by noting Hoosiers who wish to change their binary gender designation may do so by following existing BMV rules.

Hill’s opinion drew the ire of a Democratic Sen. J.D. Ford of Carmel, the only openly gay member of the Indiana General Assembly.

“Why are we so against inclusion in our state? We are all human beings, deserving of dignity, and I applaud the BMV for recognizing that,” Ford, D-Indianapolis, said in a Tuesday statement. “… The more we push back against common decency, the more the rest of the country will look down upon our state. Doesn’t Curtis Hill have more pressing things to worry about right now?”

Hill reinforced his position in a Monday statement.

“Whether to add a non-binary gender designation is a policy question for the Indiana General Assembly. Under current state law, agencies have not been delegated the authority to offer a third non-binary gender option.”

Hill, who is seeking a second term, is awaiting a state Supreme Court decision on whether he’ll face any punishment for alleged professional misconduct stemming from allegations that he drunkenly groped four women, including a state legislator. He denied any wrongdoing during an October hearing. Former state Supreme Court Justice Myra Selby, who heard four days of testimony about the allegations, recommended in February that Hill’s law license be suspended for at least 60 days, writing that his “conduct was offensive, invasive, damaging and embarrassing” to the women.

— The Associated Press contributed to this report.

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