The Volokh Conspiracy
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Indiana Court Rejects Claim That Driver's Licenses Must Include Third Gender Option
The court reverses a contrary trial court decision.
From Indiana Bureau of Motor Vehicles v. Simmons, decided yesterday by the Indiana Court of Appeals, in an opinion by Judge Randall Shepard, joined by Judges Cale Bradford and Paul Felix:
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….
Statutory Interpretation: The court also concluded that the Indiana statute requiring that driver's licenses include the person's "gender" was intended to refer to "sex," and that in turn "refers only to the binary biological classifications of male and female or whether it is a broader term that also includes non-binary classifications."
Equal Protection: The court rejected the trial court's conclusion "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":
In Bostock v. Clayton County (2020), 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. 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.
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. 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.'" 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.'" Moreover, legitimate governmental interests of states are numerous and include an interest in their efficient and effective operation.
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. 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. 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.
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.
Informational Privacy: The court also rejected the trial court's conclusion that the agency's requiring people "to select a binary designation for their state credentials that is inconsistent with their gender status, thereby possibly revealing private health information" violated a substantive due process right of informational privacy:
[A]s 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.
Katelyn E. Doering represented the Bureau of Motor Vehicles.
