Indiana AG Rokita appeals court decision allowing nonbinary gender marker on BMV licenses

Indiana Attorney General Todd Rokita's office is appealing a lawsuit that forced the Bureau of Motor Vehicles to reinstate its policy of issuing driver's licenses with an "X" listed as the gender marker for nonbinary residents.

A group of mostly anonymous plaintiffs who identify as nonbinary sued the state in 2021 for clamping down on a BMV policy from 2019 that allowed people to select “X” instead of “M” or “F” for a gender designation on their ID. A Monroe County judge sided with the plaintiffs in December.

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The lawsuit had been under seal for nearly two years but key documents were finally made public by a court order April 21, just days before Rokita’s office appealed. One of those documents: Monroe Circuit Judge Holly V. Harvey’s December decision finding that the BMV was violating federal and Indiana laws.

BMV stops offering 'X' after former attorney general intervenes

Harvey wrote that the BMV stripped plaintiffs of their right to informational privacy because it forced “nonbinary applicants to select a gender which may reflect private health information which is inconsistent with their gender identity.”

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The agency also violated state administrative law, she wrote, by ceasing to offer the “X” without first adopting that change as a formal rule.

Read the judge's order below:

On behalf of the BMV, the Indiana Attorney General’s Office argued that the practice was legal. According to court documents, the BMV started offering the "X" in 2019 in line with guidelines set by the non-profit American Association of Motor Vehicle Administrators. The following year, then-attorney general Curtis Hill published an advisory opinion saying that the BMV didn’t have the authority to take that step.

Only allowing an “M” or an “F” aligns with "both state and federal credentialing law and is consistent with how the state defines the word ‘gender,’” Rokita’s office argued in court documents.

“If there is no fundamental right to drive or hold a driver’s license, and there is no fundamental right to choose how a name appears on a driver’s license, then certainly there is no fundamental right to dictate how a person’s gender marker appears on the driver’s license,” state attorneys wrote.

'I was just asking them to understand me'

But the 13 plaintiffs in the case said the denials violated their constitutional right to equal protection under the law, and would create conflicting information across their personal records. They sued with assistance from lawyers at the non-profit law firm Indiana Legal Services.

Plaintiff Fitz Simmons told IndyStar that while something like a driver’s license seems small, having the request for an "X" get denied during their application was like “death by 1,000 cuts.”

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“I was just asking them to understand me and my body and my brain in a way that didn't seem to mesh with whatever their paperwork said,” Simmons, who uses "they" and "them" pronouns, said.

“If the ‘F’ had been on my driver's license, it feels like another explanation I would have to give when they're asking for identification," they continued. “I don't want to keep telling the same story over and over again, because that story is laden with a number of different life experiences and traumas that no one has the right to know.”

Simmons and the other plaintiffs’ attorneys wrote that the “X” option is common “on federal documents, birth certificates, and IDs from other states,” and that the BMV began offering it “to maintain consistency, accuracy, and customer service for nonbinary ID holders."

The BMV failed to “produce any evidence to justify its policy of singling out nonbinary ID holders for differential treatment because of their gender,” the plaintiffs’ attorneys argued.

Court documents from the plaintiffs describe nonbinary as “an umbrella term for individuals whose gender identity—the internal and inherent sense of being a woman, a man, or neither—is neither or not exclusively male or female.”

Call IndyStar courts reporter Johnny Magdaleno at 317-273-3188 or email him at jmagdaleno@indystar.com. Follow him on Twitter @IndyStarJohnny

This article originally appeared on Indianapolis Star: AG Todd Rokita appeals suit over nonbinary gender marker on BMV licenses