Tomes, 030920 INAGO, AGO 2020-3
Case Date | March 09, 2020 |
Court | Indiana |
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.
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