IN THE
Court of Appeals of Indiana Indiana Bureau of Motor Vehicles and Joseph B. Hoage, in his official capacity FILED as Commissioner of the Indiana Bureau Apr 09 2024, 11:14 am
of Motor Vehicles, CLERK Indiana Supreme Court Court of Appeals Appellants-Defendants, and Tax Court
v.
Fitz Simmons, A.G., S.D., C.O., K.W., 1 W.A., B.W., K.H., S.R., J.T., K.O., S.O., and J.L., Appellees-Plaintiffs.
April 9, 2024
Court of Appeals Case No. 23A-PL-899
1 Although Plaintiff J.L. did not participate in this appeal, J.L. is a party on appeal. See Ind. Appellate Rule 17(A) (stating that a party of record in the trial court or administrative agency shall be a party on appeal).
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 1 of 23 Appeal from the Monroe Circuit Court
The Honorable Holly M. Harvey, Judge
Trial Court Cause No. 53C06-2106-PL-1347
Opinion by Senior Judge Shepard Judges Bradford and Felix concur.
Shepard, Senior Judge.
[1] The Appellees initiated litigation seeking to compel the Indiana Bureau of
Motor Vehicles and Commissioner Joseph B. Hoage to include a third gender
option on driver’s licenses and identification cards. The trial court so ordered.
Finding error, we reverse and remand with instructions.
Facts and Procedural History [2] In 2019, BMV began recognizing a third gender option on state driver’s licenses
and identification cards. This option was represented by an “X” and meant
“Not Specified.” That same year, the Appellees applied to amend the gender
markers on their state credentials to “X” in order to reflect their nonbinary
gender. However, in 2020, BMV stopped offering or processing transactions
with the gender indicator of “X.” Consequently, it denied the Appellees’
applications.
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 2 of 23 [3] Appellees Simmons, S.R., K.H, A.G., and S.D. sought administrative review of
the denial. The Administrative Law Judge issued her recommended order
affirming BMV’s denial in February 2021.
[4] In June, all Appellees filed a complaint against BMV seeking declaratory and
injunctive relief from BMV’s binary-only policy. The complaint alleged
violations of the Administrative Rules and Procedures Act (ARPA), the
Fourteenth Amendment’s Equal Protection and Due Process Clauses, and the
First Amendment. It included a petition for judicial review of the ALJ’s
decision concerning Simmons, S.R., K.H, A.G., and S.D. The BMV moved to
dismiss the complaint, and the court granted the motion as to the First
Amendment claim but denied the motion as to the remainder. The court
subsequently denied BMV’s motion for summary judgment and granted the
Appellees’ petition for judicial review and motion for summary judgment. The
court then entered a declaratory judgment and permanently enjoined BMV
from refusing to allow non-binary designations on state credentials. BMV 2 appeals.
Issues I. Whether the court erred by granting judicial review; and
2 We held oral argument in this case on January 23, 2024, in the Court of Appeals courtroom. We thank counsel for their valuable advocacy.
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 3 of 23 II. Whether the court erred in granting summary judgment for the Appellees.
Discussion and Decision I. Judicial Review [5] BMV contends the trial court erred in granting the petition for judicial review of
the ALJ’s decision regarding Simmons, S.R., K.H, A.G., and S.D. because they
failed to comply with the processes of the Administrative Orders and
Procedures Act (AOPA). Specifically, BMV argues the request for review was
untimely.
[6] The AOPA requires a party to petition for judicial review within thirty days
after service of notice of the agency action. Ind. Code § 4-21.5-5-5 (1986). A
party who fails to timely petition waives its right to judicial review. Ind. Code §
4-21.5-5-4(b)(1) (1986). This Court has found it significant that the AOPA
“‘establishes the exclusive means for judicial review of an agency action’” and
that it does not include a provision similar to Appellate Rule 1 that permits
deviation from the AOPA’s procedural rules. Hunter v. State, Dep’t of Transp., 67
N.E.3d 1085, 1091 (Ind. Ct. App. 2016) (quoting Ind. Code § 4-21.5-5-1
(1994)), trans. denied. Citing Indiana Code section 4-21.5-2-2 (1986), the Court
further emphasized that a person may waive any right conferred upon them by
AOPA and concluded therefore that “there is no mechanism allowing the trial
court to resurrect a waived right to judicial review.” Hunter, 67 N.E.3d at 1091.
[7] Here, the ALJ issued her recommended order in February 2021, and the five
Appellees neither objected nor sought reconsideration of that order. Likewise,
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 4 of 23 they did not seek judicial review at any time before this lawsuit was filed in
June 2021. Thus, their petition was untimely. The trial court erred in excusing
the untimeliness. Accordingly, we reverse the court’s grant of the petition for
judicial review.
[8] Nevertheless, the Appellees’ procedural waiver of their right to judicial review
does not adversely affect their claims here because these five Appellees, indeed
the Appellees as a whole, have brought a declaratory judgment action, which is
distinct from judicial review of the decision of an administrative agency.
[9] The purpose of the Uniform Declaratory Judgment Act is “to settle and to
afford relief from uncertainty and insecurity with respect to rights, status and
other legal relations . . . .” Ind. Code § 34-14-1-12 (1998). More particularly, a
declaratory judgment action is a discrete action in which a person whose rights,
status, or other legal relations are affected by a statute may seek a determination
of any question of construction or validity arising under the statute to obtain a
declaration of rights, status, or other legal relations thereunder. Ind. Code § 34-
14-1-2 (1998).
[10] Accordingly, these Appellees are not challenging an agency action subject to
judicial review but rather are contesting BMV’s binary-only policy. They asked
the court to construe Indiana Code section 9-24-11-5, enter a declaratory
judgment that BMV’s enforcement of the statute violated their rights, and
permanently enjoin BMV from enforcing the policy.
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 5 of 23 [11] This Court has previously determined that “a challenge to the content of an
agency’s rules and regulations was not properly raised in a petition for judicial
review[] but is more appropriately considered in a declaratory judgment
action.” Ind. Dep’t of Env’t Mgmt. v. Chem. Waste Mgmt. of Ind., Inc., 604 N.E.2d
1199, 1203 (Ind. Ct. App. 1992) (citing Ind. & Mich. Elec. Co. v. Public Serv.
Comm’n, 495 N.E.2d 779 (Ind. Ct. App. 1986), trans. denied), trans. denied. The
Court further noted our Supreme Court’s observation that “‘under some
circumstances a declaratory judgment is an available alternative to exhaustion
of administrative remedies and judicial review.’” Chem. Waste Mgmt. of Ind.,
604 N.E.2d at 1203 (quoting State ex. rel. State Election Bd. v. Superior Ct. of
Marion Cnty., 519 N.E.2d 1214 (Ind. 1988)).
[12] A recent decision of our Supreme Court sheds further light on this subject.
There, the Court considered whether the merits of a declaratory judgment
action should have been considered by the trial court where the plaintiff had
filed for judicial review and included a claim for declaratory judgment. The
trial court denied the declaratory judgment request partly because the plaintiff
did not file a separate complaint for a declaratory judgment. Concluding the
trial court should have considered the declaratory judgment request on the
merits, the Supreme Court emphasized the importance of the judicial system’s
principle of judicial economy and stated, “While a party typically can only
obtain judicial review of issues raised before an agency, [the plaintiff] was not
seeking judicial review of this issue—it was seeking a declaratory judgment. . . .
[The plaintiff] could have filed this declaratory judgment request as a separate
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 6 of 23 action . . . .” ResCare Health Servs., Inc. v. Ind. Fam. & Soc. Servs. Admin. - Off. of
Medicaid Pol’y & Plan., 184 N.E.3d 1147, 1152 (Ind. 2022); see also Wilson v. Bd.
of Ind. Emp. Sec. Div., 270 Ind. 302, 305, 385 N.E.2d 438, 441 (1979) (holding
that, given the constitutional character of the issue presented, it was not
necessary for plaintiff “to press the issue through administrative channels as a
precondition to judicial review” where her action for declaratory judgment and
injunctive relief was constitutional challenge to procedures employed by board
in suspending and terminating benefits).
[13] Thus, we conclude that while the petition for judicial review was untimely filed
and therefore improvidently granted, the action for declaratory judgment and
injunctive relief as it relates to Simmons, S.R., K.H, A.G., and S.D. may
nevertheless proceed as it is a distinct action.
II. Summary Judgment [14] BMV next asserts the trial court erred by entering summary judgment in favor
of the Appellees on their claims that BMV violated the Administrative Rules
and Procedures Act (ARPA) and violated the Appellees’ rights to equal
protection and due process. We address each argument in turn.
[15] When reviewing the grant or denial of summary judgment, our standard of
review is similar to that of the trial court: summary judgment is appropriate
only where there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Ind. Trial Rule 56(C); City of
Indianapolis v. Cox, 20 N.E.3d 201, 205-06 (Ind. Ct. App. 2014), trans. denied.
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 7 of 23 We consider only those materials properly designated pursuant to Trial Rule
56, and we construe all factual inferences and resolve all doubts as to the
existence of a material issue in favor of the non-moving party. Young v. Hood’s
Gardens, Inc., 24 N.E.3d 421, 424 (Ind. 2015). We review a summary judgment
de novo, and the fact that the parties have filed cross-motions for summary
judgment does not alter the standard of review or change our analysis; “the
party that lost in the trial court has the burden of persuading us that the trial
court erred.” Speedy Wrecker Serv., LLC v. Frohman, 148 N.E.3d 1005, 1008
(Ind. Ct. App. 2020).
A. Violation of ARPA
[16] In entering summary judgment for the Appellees on this issue, the trial court
concluded that BMV’s cessation of allowing a gender designation of “X” on
state credentials constituted a new administrative rule that was not promulgated
pursuant to the ARPA and was therefore void.
[17] It is well settled that administrative agencies may make reasonable rules and
regulations to apply and enforce legislative enactments (i.e., statutes). Ind. Dep’t
of Env’t Mgmt. v. Twin Eagle LLC, 798 N.E.2d 839, 847 (Ind. 2003). However,
an administrative agency may only regulate by a new rule if it has first complied
with the proper rulemaking procedures set forth in the ARPA, which include
public hearings and review by executive branch officials. Villegas v. Silverman,
832 N.E.2d 598, 608 (Ind. Ct. App. 2005).
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 8 of 23 [18] BMV argues its discontinuation of the use of the “X” gender designation was
not a new “rule.” More particularly, BMV claims it properly reverted to its
previous procedure of not using the non-binary gender marker because it had
neither the statutory nor the regulatory authority to issue credentials bearing
such a designation in the first place. Accordingly, we must begin by examining
BMV’s authority.
[19] As an administrative agency, BMV has only those powers conferred on it by the
legislature, and it has no power to act contrary to governing statutes. LTV Steel
Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000). Pertinent here, BMV’s
authority to issue driver’s licenses is governed by Indiana Code section 9-24-11-
2 (2016). In executing this duty, BMV is required to include on learner’s
permits and driver’s licenses some specific information including the “gender”
of the permittee or licensee. See Ind. Code § 9-24-11-5(a)(6).
[20] In this case, the Appellees contend the term “gender” means “gender
identity”—how a person identifies themselves based on an internal sense—a
definition that encompasses non-binary gender designations. On the other
hand, BMV defines “gender” as synonymous with “sex”—i.e., the biological
state of being either male or female. Based on this interpretation, BMV argues
that, before a non-binary gender marker could be used on state credentials, a
new gender designation would need to be created and implemented, and such
actions are beyond the scope of BMV’s authority. Thus, the question presented
here is whether the term “gender” in Section 9-24-11-5(a)(6) refers only to the
binary biological classifications of male and female or whether it is a broader
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 9 of 23 term that also includes non-binary classifications. As the legislature has not
defined “gender,” we turn to the well-established rules of statutory
interpretation.
[21] We pause here to note that, while our review of a summary judgment is de
novo, our review of this particular issue is de novo for the additional reason that
we are presented with a question of statutory interpretation. Vanderburgh Cnty.
Election Bd. v. Vanderburgh Cnty. Democratic Cent. Comm., 833 N.E.2d 508, 510
(Ind. Ct. App. 2005) (“Statutory interpretation is a question of law reserved for
the court and is reviewed de novo.”)
[22] The goal of statutory construction is to determine and give effect to the intent of
the legislature. Ind. Bd. of Pharmacy v. Elmer, 171 N.E.3d 1045, 1049 (Ind. Ct.
App. 2021) (quoting Ind. Alcohol & Tobacco Comm’n v. Spirited Sales, LLC, 79
N.E.3d 371, 376 (Ind. 2017)), trans denied. “‘The best evidence of legislative
intent is the language of the statute itself[.]’” Washington Cnty. Health Dep’t v.
White, 878 N.E.2d 224, 228 (Ind. Ct. App. 2007) (quoting Scott v. Irmeger, 859
N.E.2d 1238, 1239 (Ind. Ct. App. 2007)), trans denied. Where, as here, a
statutory term is undefined, the legislature has instructed us to “interpret the
term using its ‘plain, or ordinary and usual, sense.’” Rainbow Realty Grp., Inc. v.
Carter, 131 N.E.3d 168, 174 (Ind. 2019) (quoting Town of Brownsburg v. Fight
Against Brownsburg Annexation, 124 N.E.3d 597, 605 (Ind. 2019)); see also Ind.
Code § 1-1-4-1(1) (1991).
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 10 of 23 [23] To obtain the plain meaning of a term, we consult “general-language
dictionaries.” Rainbow Realty Grp., Inc., 131 N.E.3d at 174. One such
dictionary defines “gender” as “sex.” https://www.merriam-
webster.com/dictionary/gender [https://perma.cc/6GVX-64VG] (last visited
March 28, 2024). While it also supplies the alternative definition of “gender
identity,” the usage guide states: “[I]n nonmedical and nontechnical contexts,
there is no clear delineation [between the words “gender” and “sex”], and the
status of the words remains complicated.” Id.
[24] Another dictionary defines the term “gender” as: “Either of the two divisions,
designated female and male, by which most organisms are classified on the
basis of their reproductive organs and functions; sex.”
https://www.ahdictionary.com/word/search.html?q=gender
[https://perma.cc/A24J-P4MK] (last visited March 28, 2024). And
alternatively, “One’s identity as female or male or as neither entirely female nor
entirely male.” Id. The usage note with this definition states: “Some people
maintain that the word sex should be reserved for reference to the biological
aspects of being male or female or to sexual activity, and that the word gender
should be used only to refer to sociocultural roles. . . . The distinction can be
problematic, however.” Id.
[25] In determining legislative intent, we also examine the entire statute, prior
versions, changes made, and the reasons for making them. Lincoln Nat. Bank v.
Rev. Bd. of Ind. Emp. Sec. Div., 446 N.E.2d 1337, 1339 (Ind. Ct. App. 1983).
Prior to July 2007, Section 9-24-11-5 provided, in part:
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 11 of 23 (a) A permit or license issued under this chapter must bear the distinguishing number assigned to the permittee or licensee, and must contain:
(1) the name of the permittee or licensee; (2) the date of birth of the permittee or licensee; (3) the mailing address or residence address of the permittee or licensee; (4) a brief description of the permittee or licensee; (5) if the permittee or licensee is less than eighteen (18) years of age at the time of issuance, the dates on which the permittee or licensee will become: (A) eighteen (18) years of age; and (B) twenty-one (21) years of age; (6) if the permittee or licensee is at least eighteen (18) years of age but less than twenty-one (21) years of age at the time of issuance, the date on which the permittee or licensee will become twenty- one (21) years of age; and (7) except as provided in subsection (c), for the purpose of identification, a: (A) photograph; or (B) computerized image; of the permittee or licensee[.]
[26] Effective July 1, 2007, Sub-section 9-24-11-5(a) was expanded to require
permits and licenses to contain, in pertinent part:
(1) The full legal name of the permittee or licensee. (2) The date of birth of the permittee or licensee. (3) The address of the principal residence of the permittee or licensee. (4) The hair color and eye color of the permittee or licensee. (5) The date of issue and expiration date of the permit or license. (6) The gender of the permittee or licensee. (7) The unique identifying number of the permit or license. (8) The weight of the permittee or licensee. (9) The height of the permittee or licensee. (10) A reproduction of the signature of the permittee or licensee.
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 12 of 23 (emphasis added). The General Assembly amended the statute to comply with
the requirements of the federal law commonly known as the REAL ID Act. See
Indiana Conference Committee Report, 2007 Reg. Sess. S.B. 463; see also 2007
Ind. Legis. Serv. P.L. 184-2007 (S.E.A. 463).
[27] The REAL ID Act is a product of our country’s post-9/11 war on terrorism. A
Real ID-compliant driver’s license, permit, or identification card will be
required in order to board commercial airplanes or enter certain federal
facilities. https://www.in.gov/bmv/licenses-permits-ids/real-id-overview/
[https://perma.cc/3QD6-BZEW] (last visited March 28, 2024). While the
deadline for this requirement has been extended several times, as of the writing
of this opinion, the current deadline is May 7, 2025.
[28] The Act sets forth the minimum document requirements and issuance standards
established by the Department of Homeland Security for federal recognition of
state identification. Among these is the information state driver’s licenses and
identification cards must contain, which includes “[t]he person’s gender.”
REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, Title II, § 202(b)(3)
(codified in 49 U.S.C. § 30301 note). In establishing these minimum standards,
the Department of Homeland Security left the determination of “gender” up to
each state. See Minimum Standards for Driver’s Licenses and Identification
Cards Acceptable by Federal Agencies for Official Purposes, 73 Fed. Reg. 5272-
01, 5301 (January 29, 2008) (to be codified at 6 C.F.R. pt. 37). Thus, our
legislature’s amendment is not necessarily indicative of an intention to allow
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 13 of 23 additional gender markers on state credentials but rather simply a result of
implementing the federal requirements under the REAL ID Act.
[29] Other rules of statutory construction serve to bolster BMV’s interpretation. A
principle paramount to the interpretation of a statute instructs that statutes
concerning the same subject matter should be harmonized to give effect to each,
and this rule takes precedence over other rules of statutory construction. McNeil
v. Anonymous Hosp., 219 N.E.3d 789, 796-97 (Ind. Ct. App. 2023) (quoting
McCabe v. Comm’r, Ind. Dep’t of Ins., 949 N.E.2d 816, 820 (Ind. 2011)).
Application of this principle in this case suggests legislative intent to consider
the term “sex” synonymous with the term “gender.” For example, Section 9-
30-3-6, concerning data to be included in an information and summons in
traffic cases, specifically requires the “sex” of the operator of the vehicle to be
recorded. See Ind. Code § 9-30-3-6(b) (2007). Notably, this statute was
amended effective July 1, 2007, the same time Section 9-24-11-5 was amended
to incorporate the federal terminology of “gender,” yet the legislature chose to
maintain the term of “sex” in the text of Section 9-30-3-6. Likewise, Section 9-
30-6-16 includes the “sex” of the licensee as one piece of required information
to be included in a bureau certificate when a licensee either fails or refuses a
chemical test. See Ind. Code § 9-30-6-16 (2005).
[30] An additional principle to be considered in construing an ambiguous statute is
the weight we give to the interpretation of the administrative agency charged
with enforcing the statute. Ind. Bureau of Motor Vehicles v. McClung, 138 N.E.3d
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 14 of 23 303, 308 (Ind. Ct. App. 2019). We assign the agency’s interpretation significant
weight, provided it is reasonable and consistent with the statute itself. Id.
[31] BMV, the agency tasked with enforcing Section 9-24-11-5, construes the term
“gender” as synonymous with “sex.” In discharging its mandated duty under
Sub-section 9-24-11-5(a)(6) to indicate on Indiana driver’s licenses the “gender”
of the licensee, BMV includes on the face of licenses category 15 labeled “Sex.”
This label is followed by either an “M” for male or an “F” for female, as
evidenced below in the example displayed on BMV’s website. Moreover, BMV
follows this procedure even on those licenses issued in compliance with the 3 federal REAL ID Act, whose terminology Section 9-24-11-5(a)(6) mirrors.
https://www.in.gov/bmv/licenses-permits-ids/learners-permits-and-drivers-
licenses-overview/drivers-license/ [https://perma.cc/Q269-CPRR] (last visited
March 28, 2024).
3 A Real ID is indicated by the star in the upper right-hand corner of a driver’s license, permit, or state identification card. https://www.in.gov/bmv/licenses-permits-ids/real-id-overview/ [https://perma.cc/VF4A-W7DY] (last visited March 28, 2024).
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 15 of 23 [32] In sum, general-language dictionaries define “gender” as “sex.” They further
state that typically there is no clear delineation between the two terms and
when a distinction is made between them, it proves to be problematic. Further,
our examination suggests the legislature incorporated the term “gender” into
our state statute simply to comply with the federal REAL ID Act, and it has not
embarked on creating a new gender designation, which it alone has the
authority to do. Moreover, even since the 2007 amendment adding the term
“gender,” Indiana driver’s licenses bear an “M” or “F” in the category entitled
“Sex,” and other statutes within Title 9 likewise use “gender” and “sex”
interchangeably.
[33] Thus, until the legislature otherwise directs, we conclude “sex” is the definition
of “gender” and understand the “gender” of a permittee or licensee, under Title
9 generally and under Sub-section 9-24-11-5(a)(6) specifically, to refer to the
biological division of being either female or male. Applying that definition
here, we hold the trial court erred in granting summary judgment for the
Appellees on their claim that BMV violated ARPA by ceasing to issue
identification credentials with non-binary gender designations.
B. Equal Protection Claim
[34] BMV claims the trial court erred in concluding that the agency’s refusal to issue
a non-binary designation on state credentials violates the Appellees’ Fourteenth
Amendment right to equal protection by impermissibly treating them differently
from persons who identify as binary.
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 16 of 23 [35] The guarantee of equal protection prohibits states from denying “to any person
within its jurisdiction the equal protection of the laws.” U.S. CONST. amend.
XIV, § 1. While the Equal Protection Clause guarantees that similar
individuals will be treated in a similar manner by the government, it does not
deny the government’s ability to classify persons in the application of its laws.
Phelps v. Sybinsky, 736 N.E.2d 809, 818 (Ind. Ct. App. 2000) (quoting 3
RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON
CONSTITUTIONAL LAW § 18.2, at 208 (3d ed. 1999)), trans. denied. Rather, it
guarantees the “‘classifications will not be based on impermissible criteria or
arbitrarily used to burden a group of individuals.’” Id.
[36] In assessing whether the classification violates the Equal Protection Clause, we
must first determine the applicable level of scrutiny, which is determined by the
nature of the classification. Thomas v. Greencastle Cmty. Sch. Corp., 603 N.E.2d
190, 192 (Ind. Ct. App. 1992). We apply strict scrutiny to a classification if the
unequal treatment is based on membership in a protected class (e.g., race) or
denial of a fundamental right (e.g., right to vote). Shepler v. State, 758 N.E.2d
966, 969 (Ind. Ct. App. 2001), trans. denied. When the unequal treatment is
premised on a quasi-suspect classification, such as sex, we apply intermediate
scrutiny. Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 1914, 100 L. Ed. 2d
465 (1988). In all other cases, courts default to rational basis review. Shepler,
758 N.E.2d at 969.
[37] Here, the Appellees argue that a person’s status as non-binary is a classification
based on sex, thus triggering intermediate scrutiny. They cite Bostock v. Clayton
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 17 of 23 County, Georgia, 590 U.S. 644, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020) and
claim the U.S. Supreme Court has held that discrimination based on gender
identity is discrimination based on sex. See Appellees’ Br. p. 37. For its part,
BMV contends that an individual’s non-binary status is different from an
individual’s sex and it has not been recognized as a protected characteristic that
triggers heightened scrutiny under the Equal Protection Clause. For these
reasons, BMV urges a rational basis review.
[38] In Bostock, the Supreme Court established that Title VII’s prohibition of
discrimination based on an individual’s sex encompasses discrimination based
on an individual’s sexual orientation or transgender status. Yet, the Court
explicitly noted that only Title VII was before it and not other federal or state
laws that prohibit sex discrimination. Id., at 681, 140 S. Ct. at 1753. Thus,
neither the U.S. Supreme Court nor the Indiana Supreme Court has definitively
recognized those individuals who identify as non-binary as a protected class
under the Equal Protection Clause so as to trigger a heightened level of
scrutiny. Accordingly, we believe the rational basis test represents the proper
level of scrutiny to be applied here.
[39] We turn then to a rational basis review, which requires us to determine whether
the unequal treatment is rationally related to a legitimate governmental
purpose. Shepler, 758 N.E.2d at 969. In doing so, we are mindful that
government action is clothed with a presumption of constitutionality and the
party challenging the action must overcome that presumption “‘by a clear
showing of arbitrariness and irrationality.’” Reinoehl v. St. Joseph Cnty. Health
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 18 of 23 Dep’t, 181 N.E.3d 341, 359 (Ind. Ct. App. 2021) (quoting Kadrmas v. Dickinson
Pub. Sch., 487 U.S. 450, 451, 108 S. Ct. 2481, 101 L. Ed. 2d 399 (1988)), trans.
denied. A classification will be upheld against an equal protection challenge if
there is “‘any reasonably conceivable state of facts that could provide a rational
basis for the classification.’” Heller v. Doe by Doe, 509 U.S. 312, 320, 113 S. Ct.
2637, 2642, 125 L. Ed. 2d 257 (1993) (quoting F.C.C. v. Beach Commc’ns, Inc.,
508 U.S. 307, 313, 113 S. Ct. 2096, 2101, 124 L. Ed. 2d 211 (1993)). Moreover,
legitimate governmental interests of states are numerous and include an interest
in their efficient and effective operation. City of Indianapolis v. Armour, 946
N.E.2d 553, 560 (Ind. 2011), aff’d sub nom. Armour v. City of Indianapolis, Ind.,
566 U.S. 673, 132 S. Ct. 2073, 182 L. Ed. 2d 998 (2012).
[40] BMV asserts its binary-only policy for state credentials is designed to accurately,
consistently, and efficiently identify licensees. The agency indicates that
recording an individual’s objective characteristic of sex better advances the state
interest in accurate identification than would recording a person’s subjective
non-binary identity. See Appellees’ Br. p. 15 (defining non-binary as “a term
used by some people who experience their gender as not falling within the
binary categories of man and woman”); see also Appellants’ App. Conf. Vol. II,
p. 42 (Plaintiffs’ Compl.) (defining non-binary as term used to describe an
individual whose “internal and inherent sense” of being does not fall into the
binary categories of male or female). Additionally, identifying an individual’s
sex on their state credentials promotes consistency within the system as other
statutes require the licensee’s sex to be identified and recorded. See Ind. Code
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 19 of 23 §§ 9-30-3-6(b), 9-30-6-16. Finally, BMV suggests that issuing credentials
identifying an individual’s sex better serves to further administrative efficiency
than reporting a subjective status with innumerable designations.
[41] The Appellees, although denouncing BMV’s proffered objectives, fail to
clearly demonstrate this classification is arbitrary and irrational in order to
overcome the presumption of constitutionality. In the absence of such a
showing by the Appellees, we find these to be legitimate government interests
and conclude that the binary-only policy is rationally related to these goals.
Thus, we reverse the trial court’s entry of summary judgment in favor of the
Appellees on their equal protection claim.
C. Due Process Claim
[42] Lastly, BMV contends the trial court erred by determining that the agency
violated the Appellees’ right to informational privacy under the Fourteenth
Amendment. Specifically, the trial court concluded the Appellees’ rights were
infringed upon when they were forced to select a binary designation for their
state credentials that is inconsistent with their gender status, thereby possibly
revealing private health information.
[43] Within due process doctrine, there are two branches of claims—procedural and
substantive. In a procedural due process claim, a plaintiff must establish a
deprivation of an interest in life, liberty, or property. Snyder v. Smith, 7 F. Supp.
3d 842, 858 (S.D. Ind. 2014). A substantive due process claim is one of the
“fundamental rights.” Id. The Supreme Court, while strictly limiting this
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 20 of 23 category, has held it includes matters relating to “‘marriage, family,
procreation, and the right to bodily integrity.’” Id. (quoting Albright v. Oliver,
510 U.S. 266, 272, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994) (plurality opinion)).
Further, in our review of such a claim, state laws are afforded deference and
“need only be rational and non-arbitrary in order to satisfy the right to
substantive due process.” Gibson v. Am. Cyanamid Co., 760 F.3d 600, 614 (7th
Cir. 2014).
[44] First and foremost, as this is not a claim relating to marriage, family,
procreation, or the right to bodily integrity (e.g., refusal of unwanted medical
treatment), the Appellees are seeking to expand the Supreme Court’s
purposefully narrow concept of substantive due process. We think the statutes,
case decisions, and structure weigh against doing so.
[45] Furthermore, as we determined in Section B., supra, the Appellees have not
shown Section 9-24-11-5 to be irrational or arbitrary in order to succeed on their
constitutional claims. See Gibson, 760 F.3d at 614 (saying that rational and non-
arbitrary state laws satisfy substantive due process). In addition, their due
process claim seems to be speculative. They assert that when choosing between
the binary designations for their credentials, non-binary applicants “will likely
understand” they must select their sex assigned at birth and that “[i]n certain
instances,” this disclosure will reveal an applicant’s non-binary status.
Appellees’ Br. p. 54. And finally, it seems that the use of a non-binary
designation such as “X” on their credentials discloses the Appellees’ gender
status in the same manner they are attempting to avoid.
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 21 of 23 [46] We hold the trial court erred in granting summary judgment for the Appellees
on their substantive due process claim.
Conclusion [47] Based on the foregoing, we conclude the trial court erred by granting the
Appellees’ untimely petition for judicial review. Nevertheless, as the action for
declaratory judgment and injunctive relief is a distinct action, we rule on its
merits.
[48] Until the General Assembly determines otherwise, we hold that “gender” in
Title 9 of the state statutory scheme means “sex” and conclude the trial court
erred by entering summary judgment for the Appellees on their claim that BMV
violated ARPA by ceasing to issue identification credentials with non-binary
gender designations. In addition, we determine an individual’s non-binary
status necessitates only the standard scrutiny of the rational basis test and, as
Appellees were unable to demonstrate that there was no reasonably conceivable
state of facts that could provide a rational basis for the classification, we
conclude the trial court erred by entering summary judgment for Appellees on
their equal protection claim. Finally, we decline the invitation to expand the
category of substantive due process to include the Appellees’ claim and
conclude that, because the trial court erroneously did so, it also erred by
entering summary judgment for the Appellees on their due process claim.
[49] Accordingly, we reverse the court’s grant of judicial review and summary
judgment in favor of the Appellees and remand with instructions to dissolve the
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 22 of 23 injunction against BMV and enter summary judgment and declaratory
judgment for BMV consistent with this opinion.
[50] Reversed and remanded with instructions.
Bradford, J., and Felix, J., concur.
ATTORNEYS FOR APPELLANTS Theodore E. Rokita Attorney General of Indiana
James A. Barta Solicitor General of Indiana
Katelyn E. Doering Deputy Attorney General Indianapolis, Indiana
ATTORNEYS FOR APPELLEES Jon Laramore Indiana Legal Services, Inc. Indianapolis, Indiana
Megan Stuart Jessica Meltzer Indiana Legal Services, Inc. Indianapolis, Indiana
Brent A. Auberry David A. Suess Faegre Drinker Biddle & Reath, LLP Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 23A-PL-899 | April 9, 2024 Page 23 of 23