in-20260211-IR-140250321FRA: CREDENTIAL DOCUMENTATION REQUIREMENTS

TITLE 140 BUREAU OF MOTOR VEHICLES Final Rule LSA Document #25-321 DIGEST CREDENTIAL DOCUMENTATION REQUIREMENTS Amends 140 IAC 7-1.1-3 concerning license, permit, and identification card (credentials) documentation requirements. Effective 30 days after filing with the publisher. HISTORY Notice of First Public Comment Period: 20250618-IR-140250321FNA Regulatory Analysis submitted with Notice of First Public Comment Period: 20250618-IR-140250321RAA Date of First Hearing: July 22, 2025 Notice of Recall: 20250925-IR-140250321RCA Notice of Second Public Comment Period: 20251015-IR-140250321SNA Date of Second Hearing: November 14, 2025 CITATIONS AFFECTED: 140 IAC 7-1.1-3 SUMMARY/RESPONSE TO COMMENTS The Bureau of Motor Vehicles (BMV) requested public comment from June 18, 2025, through July 18, 2025, and during the public hearing on July 22, 2025. BMV held a second public comment period, requesting public comment from October 15, 2025, through November 14, 2025, and during the second public hearing on November 14, 2025. BMV received more than one thousand four hundred (1,400) comments from the public via email and more than three hundred (300) comments via U.S. Mail during the two public comment periods. The comments received and BMV's responses to the comments are summarized as follows: Comment: Many of the comments argue that the Regulatory Analysis filed by the BMV misrepresents the Court's ruling in Indiana Bureau of Motor Vehicles v. Simmons, 233 N.E.3d 1016 (Ind. App. 2024) in that the Court did not mandate that gender markers must reflect assigned at birth; rather, the Court only addressed the “X” gender marker and not whether “M” or “F” must align with birth sex. Response: The commenters are correct in that the Court in Simmons specifically only addressed the “X” gender marker; however, in doing so, the Indiana Court of Appeals concluded that “until the legislature otherwise directs, . . . 'sex' is the definition of 'gender' and . . . under Title 9 generally and under [Ind. Code §] 9-24-11-5(a)(6) specifically, . . . refer[s] to the division of being either female or male.” Indiana Bureau of Motor Vehicles v. Simmons, 233 N.E.3d 1016, 1027 (Ind. App. 2024) (as modified by Indiana Bureau of Motor Vehicles v. Simmons, 236 N.E.3d 1159 (Ind. App. 2024)). Comment: Many comments argue that gender expression is protected free speech “based on the Spence v. Washington [418 U.S. 405 (1974)] test” and that the proposed rule “violates the compelled speech doctrine established in West Virginia State Bd. Of Education v. Barnette, [319 U.S. 624 (1943)].” Response: Spence and Barnette are distinguishable and not applicable to gender markers on government issued credentials. First, Spence involved the display of a U.S. flag hanging upside down with a peace symbol made of tape affixed to the flag. The U.S. Supreme Court ruled the flag display was symbolic speech - that is, conduct intended to convey a specific message with a great likelihood the message would be understood by observers - and is a protected form of expression under the First Amendment. Gender markers on government issued credentials are factual government identifiers and not symbolic speech or expressive conduct initiated by the individual. Next, Barnette involved a school mandate that all teachers and students salute the American flag and recite the Pledge of Allegiance. The U.S. Supreme Court held that the freedom of speech includes the right not to speak, and that symbolic acts of expression - like refusing a salute - are protected under the First Amendment. While the ruling in Barnette prohibits compelled ideological expression, gender markers on government issued credentials are neutral regulatory requirements and not an ideological statement. Thus, Spence and Barnette are factually distinguishable and not applicable to the proposed rule. Lastly, in Commissioner of Indiana Bureau of Motor Vehicles v. Vawter, 45 N.E.3d 1200 (Ind. 2015), the Indiana Supreme Court ruled that personalized license plates are considered government speech and not private expression protected by the First Amendment. Like personalized license plates, government-issued credentials are forms of government speech and not forums for personal expression protected by the First Amendment. Thus, while Spence and Barnette are factually distinguishable and not applicable to the proposed rule, the Vawter opinion provides support that government-issued credentials - like personalized license plates - are forms of government speech, which the government may define and limit without violating the First Amendment. Comment: The proposed rule is discriminatory, serves no rational government interest, and impedes equal access to government services as the rule will effectively bar all transgender, gender diverse, or intersex Hoosiers from obtaining credentials which accurately reflect their identity. Response: The Simmons Court ruled that the BMV's binary-only credential policy did not violate the Equal Protection Clause because the BMV's policy was neither irrational nor arbitrary in light of the governmental interests of accurately, consistently, and efficiently identifying licensees; promoting consistency with other statutes; and maintaining administrative efficiency. While the Simmons Court essentially determined that "sex" is synonymous to "gender" and refers to the division of being female or male, it is important to note that the Court's conflation of "sex" with "gender" is only for the purposes of “Title 9 generally and under [Ind. Code §] 9-24-11-5(a)(6) specifically.” Simmons at 1027. Including biological or binary sex on a credential is not a denial of gender diversity, but a reflection of practical realities that coexist with personal identity because biological sex and gender identity serve different but equally important functions. The proposed rule is not aimed at discriminating against gender-diverse Hoosiers or denying gender diversity; rather, it is aimed at ensuring the effective and efficient functioning of government systems and processes and maintaining compliance with state and federal laws and regulations. Comment: Many comments were received requesting that the BMV continue to offer non-binary “X” designations on credentials contending that the Simmons opinion does not require the BMV to eliminate non-binary gender designations; rather, Simmons merely upholds the BMV's discretion. Response: As discussed in the response to the first comment above, the Simmons Court did not uphold the BMV's discretion to offer a non-binary “X” gender marker. Rather, the Simmons Court concluded that “until the legislature otherwise directs, . . . 'sex' is the definition of 'gender' and . . . under Title 9 generally and under [Ind. Code §] 9-24-11-5(a)(6) specifically, . . . refer[s] to the division of being either female or male.” Simmons at 1027. Comment: In opposing the BMV's proposed rule, some commenters questioned why gender is included on credentials, recommending that gender no longer be included on credentials. Response: The REAL ID 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). Thus, federal law requires a person's gender to be included on a REAL ID compliance credential. Comment: Most comments received followed a general template that raised three concerns: (1) Hoosiers have been able to update their gender on their ID cards for decades with no evidence of any negative impact as a result; (2) a fear of harassment or violence if forced to obtain licensure that does not match their presented gender identity; and (3) use of one's ID is prevalent in day-to-day life and preventing trans individuals from obtaining updated documents prevents them from freely participating in public life. Response: The BMV is required to adhere to Indiana and federal laws and regulations. In addition, as an executive agency, the BMV is required to comply with executive orders unless the order is either explicitly exempted by statute or preempted by federal law. As such, the BMV is bound by Indiana Bureau of Motor Vehicles v. Simmons, 233 N.E.3d 1016 (Ind. App. 2024), as well as by Executive Order 25-36. The Simmons Court concluded that “until the legislature otherwise directs, . . . 'sex' is the definition of 'gender' and . . . under Title 9 generally and under [Ind. Code §] 9-24-11-5(a)(6) specifically, . . . refer[s] to the division of being either female or male.” Indiana Bureau of Motor Vehicles v. Simmons, 233 N.E.3d 1016, 1027 (Ind. App. 2024) (as modified by Indiana Bureau of Motor Vehicles v. Simmons, 236 N.E.3d 1159 (Ind. App. 2024)). Executive Order 25-36 defines “female” as one belonging to the sex that produces the large reproductive cell at conception, and defines “male” as one belonging to the sex that produces the small reproductive cell. As a result, the proposed rule is necessary to maintain compliance with Indiana law. Comment: The proposed rule is discriminatory, serves no rational government interest, and impedes equal access to government services as the rule will effectively bar all transgender, gender diverse, or intersex Hoosiers from obtaining credentials which accurately reflect their identity. Response: In Simmons, the Court ruled that the BMV's binary-only credential policy did not violate the Equal Protection Clause because the BMV's policy was neither irrational nor arbitrary in light of the governmental interests of accurately, consistently, and efficiently identifying licensees; promoting consistency with other statutes; and maintaining administrative efficiency. While the Simmons Court essentially determined that "sex" is synonymous to "gender" and refers to the division of being female or male, it is important to note that the Court's conflation of "sex" with "gender" is only for the purposes of “Title 9 generally and under [Ind. Code §] 9-24-11-5(a)(6) specifically.” Simmons at 1027. Including biological or binary sex on a credential is not a denial of gender diversity, but a reflection of practical realities that coexist with personal identity because biological sex and gender identity serve different but equally important functions. The proposed rule is not aimed at discriminating against gender-diverse Hoosiers or denying gender diversity; rather, it is aimed at ensuring the effective and efficient functioning of government systems and processes and maintaining compliance with state and federal laws and regulations. Comment: Many comments were received requesting that the BMV continue to offer non-binary “X” designations on credentials. Response: The Simmons Court did not uphold the BMV's discretion to offer a non-binary “X” gender marker. Rather, the Simmons Court concluded that “until the legislature otherwise directs, . . . 'sex' is the definition of 'gender' and . . . under Title 9 generally and under [Ind. Code §] 9-24-11-5(a)(6) specifically, . . . refer[s] to the division of being either female or male.” Simmons at 1027. Comment: In opposing the BMV's proposed rule, some commenters questioned why gender is included on credentials, recommending that gender no longer be included on credentials. Response: The REAL ID 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). Thus, federal law requires a person's gender to be included on a REAL ID compliant credential. Comment: In opposing the BMV's proposed rule, some commenters alleged that the rule would discourage businesses from moving to or staying located in Indiana and as such would negatively impact Indiana's revenue. Response: As discussed in the first comment above, as a result of the Court's ruling in Simmons, coupled with Executive Order 25-36, the proposed rule is necessary to maintain compliance with Indiana law. Comment: In opposing the BMV's proposed rule, some commenters alleged that the rule would be burdensome to affected individuals. Response: As discussed in the first comment above, the BMV must comply with Simmons, as well as Executive Order 25-36 to maintain compliance with Indiana law. Comment: In opposing the BMV's proposed rule, a comment mentioned that it was not burdensome to allow individuals to keep their current markers as the BMV already allows individuals to change their name or address on licenses. Response: While it is true that the BMV does allow individuals to change the name or address associated with their license, this is because Indiana law has provided the legal process through which to request such change and permits such actions. By contrast, the combination of Simmons and Executive Order 25-36, which the BMV is required to be compliant with, does not allow the same action with regards to one's sex identification. Comment: In opposing the BMV's proposed rule, a comment inquired as to whether this was an attempt to limit voting rights for affected individuals. Response: While the BMV offers the opportunity to register to vote at their branches, the BMV is not involved in the decision making or processing of voter registrations. The proposed rule has nothing to do with voting as the BMV does not have the power or authority to impact an individual's voting rights. Comment: In opposing the BMV's proposed rule, a comment stated that sex is more complicated than simply being male or female and as such the rule should not be enacted. Response: As detailed previously, the BMV must comply with Executive Order 25-36, which states that sex is determined binarily at conception. While gender identity can be a complex and multifaceted concept important to an individual's sense of self, gender identity is distinct from gender or sex. Simmons and Executive Order 25-36 plainly state that sex is limited to either male or female. Comment: In opposing the BMV's proposed rule, a comment stated that the Simmons decision only addressed gender “X” and did not preclude changing gender markers. Response: The comment's assertion is not inaccurate, but it fails to consider Executive Order 25-36 and its interplay with Simmons. Simmons defines sex as being the same as gender, and sex as being either male or female. Executive Order 25-36 defines both male and female as being determined at conception. When both Simmons and Executive Order 25-36 are taken together, they do not allow the switching of gender markers. As detailed previously, the BMV must comply with Simmons and Executive Order 25-36. Comment: In opposing the BMV's proposed rule, a comment stated that executive orders cannot transform a permissible agency function into a prohibited one, nor can they override existing regulations that remain within an agency's lawful discretion. Response: As an executive state agency, the BMV is legally obligated to comply with executive orders unless the order is either explicitly exempted by statute or preempted by federal law. Executive Order 25-36 is neither in conflict with any current Indiana statute governing the BMV's core functions nor is the order preempted by federal law, and thus, the BMV is required to comply with Executive Order 25-36. As such, the comment's assertions are misguided. FINAL RULE Sec. 3. (a) An applicant for an initial, a renewed, and an amended driver's license and identification card must submit qualified documents or information, or both, to the bureau to prove the applicant's identity, lawful status in the United States (U.S.), residence address, and Social Security number (SSN), or that the applicant does not qualify for an SSN, and that the applicant is an Indiana resident. An applicant for an initial driver's license includes an applicant who held an Indiana driver's license or identification card, became a non-Indiana resident, and then reestablished Indiana residency. For some requirements, the bureau may allow applicants to use more than one (1) qualified document to satisfy more than one (1) of the requirements in this section. A U.S. citizen, as verified through bureau records or the applicant's documents, who applies for a renewed, a replacement, or an amended driver's license or identification card and otherwise qualifies for a driver's license or an identification card, but does not comply with the documentation requirements in this section, may receive a driver's license or an identification card with a notation that the driver's license or identification card may not be accepted for federal identification purposes. The bureau will only allow an applicant's documents to serve as proof for the applicable requirement in this section if the documents meet the following requirements: (b) An applicant for an initial, a renewed, or an amended Indiana driver's license or identification card must comply with the requirements in this subsection one (1) time, except for non-U.S. citizens, as verified through bureau records or the applicant's documents, who must comply with the requirements in this subsection each time the applicant applies for an initial, a renewed, or an amended Indiana driver's license or identification card. This subsection does not apply to a U.S. citizen, as verified through bureau records or the applicant's documents, who applies for a renewed or an amended driver's license or identification card with a notation that the driver's license or identification card may not be accepted for federal identification purposes. An applicant must show proof of the following: (c) Subject to the requirements in subsection (b), to receive a replacement or renewed Indiana driver's license or identification card, an applicant must do the following: (d) Subject to the requirements in subsection (b) or (f), to receive an amended Indiana driver's license or identification card, an applicant must do the following: (e) An applicant may petition the commissioner or the commissioner's designee to accept reasonable, authentic, and verifiable alternative documents after the applicant proves they reasonably cannot meet the requirements in this section. However, non-U.S. citizens, as verified through bureau records or the applicant's documents, may not use alternate documents to demonstrate lawful status. LSA Document #25-321 Notice of First Public Comment Period: June 18, 2025 Last Hearing Held: July 22, 2025 Filed with Publisher: January 13, 2026, 9:32 a.m. Documents Incorporated by Reference: None Received by Publisher Small Business Regulatory Coordinator: Kevin Kolbus, Bureau of Motor Vehicles, Indiana Government Center North, 100 North Senate Avenue, Room N404, Indianapolis, IN 46204, (317) 234-3615, kkolbus@bmv.in.gov