Tomes, 030920 INAGO, AGO 2020-3

Case DateMarch 09, 2020
CourtIndiana
The Honorable Jim Tomes
AGO 2020-3
No. 2020-3
Indiana Attorney General Opinion
State of Indiana Office of the Attorney General
March 9, 2020
         The Honorable Jim Tomes          Indiana State Senate          200 W. Washington Street          Indianapolis, IN 46204          RE: Senate Bill 74 and Definition of gender under the Indiana Code          Dear Senator Tomes:          This opinion is in response to your request for an official opinion of the Attorney General regarding a recent rule proposed by the Indiana Bureau of Motor Vehicles ("BMV").          QUESTIONS PRESENTED
1. Whether legislation is necessary to define gender, or whether gender and sex are synonymous in Indiana Code.
2. Whether the BMV has the authority to add a non-binary option to driver's licenses absent legislation.
3. Whether the Indiana State Department of Health ("ISDH") may allow for changes to birth certificates by way of a form absent legislation or a rule promulgated under the Administrative Rules and Procedures Act ("ARPA").
         BRIEF ANSWER(S)          The BMV may not adopt a rule to define "gender" without statutory authority from the Indiana General Assembly. Absent authorizing legislation by the Indiana General Assembly, the BMV may not add a non-binary option to driver's licenses. Additionally, the ISDH may not allow changes to birth certificates absent a rule promulgated under the ARPA.          BACKGROUND          The Indiana Code provides that a rule is the whole or part "of an agency statement of general applicability that: (1) has or is designed to have the effect of law; and (2) implements, interprets, or prescribes: (A) law or policy; or (B) the organization, procedure, or practice requirements of an agency." Ind. Code § 4-22-2-3(b). The definition of an agency action includes rulemaking. Ind. Code § 4-22-2-3(d); see also Ind. Code § 4-21.5-1-4.          Current BMV regulations allow for a process by which an individual may change his or her gender from male to female or vice versa. As you noted in your request, the BMV previously proposed a rule in May 2019 regarding procedures to ensure uniformity in changes on a driver's license or an identification card. The initial rule, LSA No. 19-293, was recalled by the BMV due to the inadequacy of the Notice of Intent. In September 2019, the BMV proposed LSA No. 19-486 regarding procedures for amending gender information on a driver's license or identification card. Almost 700 comments were received in response to the proposed rule - approximately 37 in favor and 642 against. On January 22, 2020, the BMV recalled the proposed rule.          ANALYSIS          1) The BMV lacks statutory authority to define gender; gender and sex are synonymous within the Indiana Code; the BMV does not have the authority to add a non-binary option to driver's licenses absent legislation          In early 2019, the BMV issued driver's licenses with a third, non-binary sex designation, According to the BMV, it stopped issuing non-binary licenses and identification cards until LSA No. 19-486 would be put into effect so that the BMV and the ISDH documents would align.[1] As discussed infra, the BMV and the ISDH each lack statutory authority to offer a third non-binary gender option. The General Assembly would have to delegate such power to these agencies and thus far it has not done so.          Administrative...

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