A new ruling by the Indiana Court of Appeals holds that the Bureau of Motor Vehicles cannot issue "X" gender driver's licenses to nonbinary Hoosiers until a law authorizing it to do so is approved by the General Assembly and enacted by the governor.
Dan Carden
Randall Shepard, of Evansville, served on the Indiana Supreme Court from 1985-2012. His 25 years as chief justice is the longest tenure in state history.
The Indiana Bureau of Motor Vehicles cannot issue "X" gender driver's licenses to nonbinary Hoosiers until a law authorizing it to do so is approved by the General Assembly and enacted by the governor.
On Wednesday, the Indiana Court of Appeals reversed a Monroe Circuit Court ruling directing the BMV to reinstate a policy briefly in effect in 2019 permitting Hoosiers who identify as neither male nor female to use "X" as the gender marker on their driver's licenses.
The appeals court said even though Indiana's driver's license law requires the "gender" of the holder be included on the license, the use of "gender" does not mean "gender identity," which the court said is how a person identifies themselves based on an internal sense and potentially could include a nonbinary designation.
Rather, the court concluded based on dictionary definitions, related laws and the BMV's interpretation of the statute that the term "gender" must be interpreted as "sex," which it said is limited to male and female.
"Applying that definition here, we hold the trial court erred in granting summary judgment for the appellees on their claim that the BMV violated (state law) by ceasing to issue identification credentials with nonbinary gender designations," wrote former Indiana Chief Justice Randall Shepard, sitting as a senior judge on the Court of Appeals, in the 3-0 decision.
Notably, one of the three legs supporting the appeals court decision is set to go away July 1 under a new statute enacted by the Republican-controlled General Assembly aimed at limiting the authority of state agencies that have been under the exclusive control of Republican governors for the past 20 years.
House Enrolled Act 1003 (2024) directs Indiana courts, when addressing regulatory disputes, to ignore any agency interpretations of the statutes pertaining to the agency and to instead decide all questions of law without deference to the agency.
That's the opposite of what happened in this case, where Shepard said: "We assign the agency's interpretation significant weight, provided it is reasonable and consistent with the statute."
Records show the BMV began offering a third gender option in 2019 to follow the credential standards recommended by the American Academy of Motor Vehicle Administrators, which include an "X" gender identifier.
The BMV scuttled the option in early 2020 after then-Attorney General Curtis Hill Jr., a Republican running this year for Indiana governor, issued an opinion holding that only the General Assembly can decide whether the state will codify any nonbinary designations on official documents.
Hill said Wednesday he's pleased to see the appeals court agrees with him.
"Under the law, there are only two genders, male and female, and that's worth fighting for," Hill said. "We need proven conservative leaders to rid our bloated bureaucratic state agencies of these hyper-woke agendas — I am the only one running for governor who knows how to get it done."
Any of the 13 appellees who sued the BMV trying to obtain an "X" gender driver's license still can ask the Indiana Supreme Court to consider overturning the Court of Appeals ruling.
A new ruling by the Indiana Court of Appeals holds that the Bureau of Motor Vehicles cannot issue "X" gender driver's licenses to nonbinary Hoosiers until a law authorizing it to do so is approved by the General Assembly and enacted by the governor.
Randall Shepard, of Evansville, served on the Indiana Supreme Court from 1985-2012. His 25 years as chief justice is the longest tenure in state history.