Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
The gender change sought on birth certificates by seven transgender Hoosiers hangs in the balance as the governor, the attorney general and the Indiana Department of Health fight against court orders granting the switch.
Indiana Attorney General Todd Rokita has submitted motions to intervene in seven gender-change cases, most of which have already resulted in county courts ordering the health department to make the change.
The motions came following executive orders released by Indiana Gov. Mike Braun earlier this year targeting gender-specific language, which formally defined terms like “sex” and “gender” for government agencies.
“We’re taking a stand not only for the rule of law but also for common sense,” Rokita said in a July 8 press release. “Indiana law requires birth certificates to reflect the historical, immutable fact of a child’s sex. One should have no more ability to change the listed sex on a birth certificate years after the fact than to change the newborn’s listed length or weight.”
Three weeks later, Marion Circuit Court Judge Amber Collins-Gebrehiwet denied the state’s motion to intervene in one of the cases, saying intervention was “unwarranted” because it was untimely—coming a full year after a gender change request had been granted—and because the state’s interest is “adequately represented by the existing legal framework, and that its participation is not necessary to safeguard its interest in this proceeding.”
However, Lawrence Circuit Court Judge Nathan Nikirk, overseeing a separate birth certificate gender change case, granted the state’s motion to intervene. Nikirk declined to comment on the factors he considers in birth certificate change requests, citing Indiana Code of Judicial Conduct Rule 2.10, which prohibits judges from speaking on their ongoing cases.
Rokita’s office told The Indiana Lawyer that it predicts these cases will proceed “as far as we need in order to win them.”
Three of the seven gender-change requests are under seal. The other four are public record, but The Indiana Lawyer has opted not to name the individuals in those cases because they could not immediately be reached for comment.
Federal lawsuit
A federal lawsuit filed by the American Civil Liberties Union of Indiana earlier this year could help settle the matter.
Braun practically invited the lawsuit at a March press conference following the signing of his executive order. He said a legal determination on whether Hoosiers could still petition a judge to change the gender on their birth certificate would “probably have to be determined by the courts.”
Less than a month later, the ACLU responded with a class-action lawsuit accusing Braun and Larry Ervin, the state registrar and division director of Vital Records for the Indiana Department of Health, of violating the equal protection clause and the due process clause of the Fourteenth Amendment.
Ervin was included because he had directed the health department to halt the changing of gender markers on birth certificates, even if a court ordered it.
“As of March 4, 2025, per Executive Order 25-36 issued by Indiana Governor Mike Braun, the Indiana Department of Health Division Vital Records will not process gender change request for Indiana birth records,” Ervin said in a March 14 statement directed to all local health departments and their administrators in Indiana, according to court records.
“Our position is that they’re orders; they need to be complied with,” said Ken Falk, ACLU of Indiana’s legal director, in an interview with The Lawyer.
The Lawyer reached out to the health department for an explanation of what it does now when it receives a court-ordered gender change but was directed to the attorney general’s office.
“Transgender Hoosiers have a right to accurate birth certificates to live safely and authentically,” Falk said in a March 28 statement. “Court-ordered changes to birth certificates are common for a number of reasons, and to deny trans people the right to change these important documents is discrimination.”
Reasons for requesting a gender marker change, Falk told The Lawyer, are practical and personal.
“There are times when we use our birth certificates; there are times when we have to present them to get government benefits, to get a bank account, to get a passport, all those things,” Falk said. “To have to expose yourself by showing this basic identification document not matching who you are is going to really be invasive in the privacy sense and raise all sorts of concerns.”
The more personal side of the requests, Falk said, is related to social transitioning, in which those who are transgender or are suffering from gender dysphoria attempt to conform their sex identified at birth to their gender identity.
“There is an immense stress caused by the fact that people are walking around knowing that they do not match their birth certificate,” Falk said, “And I can’t stress enough how this is not a small deal. It’s a big deal.”
Although the physical transition is important for those who identify as a gender different from their sex designated at birth, Falk added, it’s equally important how “you present yourself to yourself.”
“Knowing that the state of Indiana has said, for instance, that you are female, even though there was an ‘M’ when you were born,” Falk said, “Having that change is very important.”
The ACLU lawsuit names L.A., a 15-year-old transgender girl, and all transgender Hoosiers requesting gender changes as plaintiffs. According to the ACLU’s complaint filed on March 28, the Indiana state trial court issued an order changing L.A.’s birth certificate gender marker to female. That order was presented to the local health department where L.A. was born, but no change was made, according to the complaint.
“What harm is there in recognizing how important this is, how significant this is, how damaging this is not to do it,” Falk asked. “What harm is there in not allowing that change, regardless of what your belief of inherent and innate biology is?”
For Falk, this isn’t a case about biology.
“This is a case about honoring one’s identity and why the state cares,” Falk said.
Indiana’s past practice
Indiana courts have consistently allowed the change of gender on birth certificates, along with the change of name and parental names (under certain circumstances, like adoption).
But, with at least one judge permitting Rokita’s intervention and several other hearings scheduled for later this year, the attorney general has taken it upon himself to quickly settle the matter in the courts.
“Our position is to follow the law, which instructs state agencies to interpret and apply ‘sex’ to mean ‘an individual human being’s immutable biological classification as either male or female’ as determined at conception,” said a spokesperson for Rokita’s office. “We’re intervening because orders that tell state agencies to amend birth certificates don’t follow the law. The statutes permitting additions or corrections to birth certificates, or name changes, also do not allow individuals to change their gender markers. We have intervened to vacate the orders and relieve state agencies from having to act contrary to law in the past, present and future.”
Currently, Indiana Code allows for additions or corrections to birth certificates, but it does not provide explicit gender- change language, according to Collins-Gebrehiwet’s order denying the state’s motion to intervene.
That’s why those requesting a gender marker change to their birth certificate in Indiana have previously had to obtain a certified court order.
In those cases, trial courts have cited In re Petition for Change of Birth Certificate, 2014, in which the Indiana Court of Appeals concluded that a trial court has the authority to order a gender marker correction on an adult’s birth certificate when supplied with ample medical evidence regarding a transition and when the requester has shown a “genuine desire” to have all identification conform to their “current physical and social identity.”
But the appellate court noted that since the requirement for evidence lacked specificity, the Legislature is “free to craft specific requirements.”
Additionally, the Indiana Bureau of Motor Vehicles previously acknowledged that a gender marker may be amended on a birth certificate in the Indiana Administrative Rules and Policies, but in June, the BMV proposed amendments to that rule, which would eliminate the process of changing the listed gender on a license to align with Braun’s order and a 2024 appellate decision that concluded the “gender” of a license holder also refers to their biological “sex.”
The state’s position now
Braun’s executive order, titled “Respecting the biological dichotomy between men and women as a fundamental & deeply rooted legal principle embedded in Indiana law” uses language similar to President Donald Trump’s executive order issued earlier this year targeting transgender athletes in women’s sports.
But in Braun’s order, he explicitly states that “sex” and “gender” are synonymous terms, meaning “an individual human being’s immutable biological classification as either male or female.”
This definition differs from The White House’s, which holds that “‘sex’ is not a synonym for and does not include the concept of ‘gender identity.’”
“It is the official position of Indiana’s Executive Branch that modern gender ideology is inconsistent with this fundamental and deeply rooted legal distinction between men and women,” Braun’s order stated. “Modern gender ideology attempts to replace the biological category of sex with an ever-shifting concept of self-assessed gender identity.”
Braun and the state is not alone in its endeavor to stop transgender individuals from changing the gender on their birth certificates. Florida, Kansas, Oklahoma, Montana, Tennessee and Texas do not allow amending gender markers on birth certificates, according to US Birth Certificates.•
Please enable JavaScript to view this content.