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The Journal Gazette

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Sunday, September 08, 2019 1:00 am

BMV gender rule hits roadblock

Attorney general: Insufficient public notice

NIKI KELLY | The Journal Gazette

INDIANAPOLIS – Indiana's attorney general has put the brakes on a proposed Bureau of Motor Vehicles rule establishing a simple procedure to modify a person's gender on their driver's license and ID.

The move also jeopardizes a plan by the Indiana State Department of Health to allow Hoosiers to change their gender on a birth certificate with just a physician's statement.

It is the latest chapter in yearslong wrangling over lesbian, gay, bisexual and transgender rights in Indiana that will likely end up in the legislature.

The BMV proposal has been quietly moving through the administrative rulemaking process and was set to become effective in October.

But Attorney General Curtis Hill declined to sign off on the rule based on “their perception that public notice wasn't sufficient,” BMV spokeswoman Susan Guyer said.

The rule says either a birth certificate or a special Indiana State Department of Health form is needed to change gender on licenses and IDs. It is essentially the same policy that exists now except it will be a health department form instead of the motor vehicle agency form.

“The BMV is not in the medical field,” BMV Commissioner Peter Lacy said. “It makes more sense that the doctor's note be a state department of health form and that the state department of health would administer the physician portion.”

State Health Commissioner Dr. Kristina Box would not disclose exactly what the health form says, making it difficult to understand the full impact of the rule.

But in an interview with The Journal Gazette, Box said it is similar to the existing BMV form.

“They have to have an MD or DO attest to the fact that they've undergone transition. They basically have had medical treatment in order to transition and that can be a whole gamut,” she said. “To some people that's counseling, and to some people that's surgery. That's between a physician and the patient to decide.”

The BMV form on the website says the doctor certifies that the person “successfully underwent all treatment necessary to permanently change” their gender.

Box also said the health department will now accept the new health department form to change gender on birth certificates – a significant policy shift. 

Until now, Hoosiers had to go through the courts – sometimes a long and costly process – to amend a birth certificate.

“We are going to make this easier for Hoosiers by removing this barrier and putting that protected health information at the Indiana State Department of Health,” Box said.

The status of that policy shift is in the air as Hill and the BMV work to make changes to the rule, which the agency has now recalled. 

A statement from Hill's office said the “Attorney General reviews proposed rules for form and legality. Any recommendation made by our office regarding such rules is based on those factors rather than specific subject matter. The Office of the Attorney General is duty-bound and prepared to work with state agencies to ensure the requirements of the rulemaking statutes are followed.” 

The entire discussion hasn't sat well among socially conservative groups and lawmakers who believe a person should be required to keep the gender assigned at birth on official state documents.

“I think a person can appear as they choose, and freely live that lifestyle, but we need their true biological identity from birth on a driver's license if that document is to have any credibility,” said Micah Clark, executive director of the American Family Association of Indiana.

“Otherwise, why can't I claim the weight, height and eye color I've always wanted? What if a person floats between genders and may appear male one month or female another? I think their official ID should reveal their true biology from birth, not their mental beliefs.”

The issue has been simmering for years but came to a head in March.

Lacy explained that the BMV has been changing a small number of genders using a doctor's statement since 2009. But this year the agency was ordered by a court in two cases to offer a non-binary X option as well.

An “X” is for Hoosiers who don't identify as male or female.

When that became known, several amendments were filed in the Indiana House to prohibit the use of a physician's note to change genders. That would have left only a certified amended birth certificate as an option – a much more difficult process.

At the time, House Speaker Brian Bosma, R-Indianapolis, shelved the bill to avoid a larger fight. He declined comment.

Rep. Curt Nisly, R-Goshen, had one amendment related to the topic, and he said lawmakers were told the issue would be vetted fully behind-the-scenes.

“I am disappointed they have not come through as we were led to believe,” he said.

There has been work internally as Box and Lacy agreed the issue should reside with the health department – the keeper of vital records. So they have converted the BMV form to a health form.

But they refuse to disclose the new form – making it difficult to understand the full impact of the proposed rule that was published in the Indiana Register.

It simply says “An applicant applying to change the applicant's gender on the applicant's driver's license or identification card must present: (i) a certified birth certificate; or (ii) State Form 56713 completed by the Indiana state department of health.”

That led Megan Stuart, director of the LGBT Law Project at Indiana Legal Services, to testify against the rule in a public hearing in June because it imposes a new bureaucratic hurdle.

“Being able to make your identification consistent with your gender identity is essential to basic social and economic well-being,” she wrote in a letter to the department.

Stuart said she is unclear if the individual will have to visit the health department to have the form filled out. If so, that would mean an extra trip that would hurt her clients. She is also anxious to see the exact wording.

She acknowledged that if a person can simply download the form and have the doctor fill it out then the process would essentially be the same as now.

Of course, she would prefer no form at all.

“When I go to the BMV no one asks me to verify my height and weight. Why is this different?” Stuart said. “What is best for my clients is they self-report without external verification.”

She also said the health department hasn't announced the new procedure to change birth certificates but, if true, it would be an improvement.

Clark doesn't think a person can ever truly change genders because their chromosomes remain the same.

“Those genetic markers are an objective biological identification that cannot be changed with a mental view, added hormones, or a disfiguring surgery,” he said.

And Nisly expects a number of bills will be filed in January to deal with the issue – including making a distinction between sex and gender, and ensuring accurate documents.

He said if someone is arrested law enforcement needs to know what gender officer should do the search and what side of jail they go to.

“It's just part of the structure of society that we live in,” Nisly said.

nkelly@jg.net