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Attorney general crosses out 'X' gender option on Indiana driver's licenses
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Attorney general crosses out 'X' gender option on Indiana driver's licenses

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Curtis Hill

Indiana Attorney General Curtis Hill Jr.

State agencies are not permitted to use an "X" gender designation for Hoosiers who identify as neither male nor female without explicit authorization from the General Assembly, according to Indiana Attorney General Curtis Hill Jr.

In an official opinion issued Monday, Hill said the Bureau of Motor Vehicles and State Department of Health overstepped their bounds last year by briefly allowing non-binary individuals to obtain a driver's license, state identification card or birth certificate with an "X" in place of the traditional "M" or "F" gender markers.

"Administrative agencies like the BMV and the ISDH are creatures of the Legislature whose powers are limited to their authorizing statutes," Hill said.

"Only the General Assembly may determine whether the state of Indiana will codify any non-binary designations on state documents."

The BMV did not respond directly to the attorney general's statement. It said it is reviewing the opinion and determining next steps.

Last March, the BMV said it decided to offer a third gender option to follow the credential standards recommended by the American Academy of Motor Vehicle Administrators, which include an "X" gender identifier.

Under Indiana law, every application for a driver's license or identification card is required to contain information regarding "the gender of the applicant," which the BMV interpreted as permitting the "X" option.

Hill, a Republican, said his reading of state law only authorizes Hoosiers to be identified as male or female, and absent specific legislative establishment of a non-binary gender, state agencies are not permitted to employ one.

"Individuals wishing to change their binary designation on a driver's license or identification card may continue to utilize the process currently provided by BMV rules," Hill said.

An official opinion of the attorney general is not legally binding. Generally, though, it is respected by Indiana courts if the issue presented in the opinion is before them.

Hill's opinion was requested by state Sen. Jim Tomes, R-Wadesville.

In 2016, Tomes filed legislation that would have made it a misdemeanor crime — punishable by up to one year in jail and a $5,000 fine — for any person to use a bathroom, locker room or shower room that does not correspond to the gender they were assigned at birth.

Senate Bill 35 did not advance that year in the Republican-controlled chamber.

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