in-20251015-IR-140250321SNA: CREDENTIAL DOCUMENTATION REQUIREMENTS 

TITLE 140 BUREAU OF MOTOR VEHICLES Notice of Second Public Comment Period LSA Document #25-321 CREDENTIAL DOCUMENTATION REQUIREMENTS  PURPOSE OF NOTICE The Bureau of Motor Vehicles (BMV) is soliciting public comment on amending rules at 140 IAC 7-1.1-3 concerning license, permit, and identification card (credentials) documentation requirements. BMV seeks comment on the affected citations listed and any other provisions of Title 140 that may be affected by this rulemaking. 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 ADDITIONAL DOCUMENTS Regulatory Analysis: No changes were made to the Regulatory Analysis published with the Notice of First Public Comment Period. Notice of Public Hearing: 20251015-IR-140250321PHA CITATIONS AFFECTED: 140 IAC 7-1.1-3 AUTHORITY: IC 9-14-8-3 OVERVIEW Basic Purpose and Background BMV's authority to issue credentials is governed by IC 9-24-11-2. In executing this duty, BMV-issued credentials must contain specific information, including the gender of the credential holder under IC 9-24-11-5(a)(6). In April 2024, the Indiana court of appeals considered the meaning of the term “gender” as it is used in IC 9-24-11-5(a)(6). The court concluded that the gender of a credential holder, under Title 9 generally, and IC 9-24-11-5(a)(6) specifically, refers to a credential holder's “sex" — the trait of being either female or male.1 In effect, the Indiana court of appeals held that BMV can only issue credentials containing a gender designation that reflects the applicant’s sex. _________________________ 1Indiana Bureau of Motor Vehicles v. Simmons, 233 N.E.3d 1016, 1029 (Ind. Ct. App.), aff'd as modified, 236 N.E.3d 1159 (Ind. Ct. App. 2024), and transfer denied, 248 N.E.3d 1196 (Ind. 2024) For purposes of IC 4-22-2-28.1, small businesses affected by this rulemaking may contact the Small Business Regulatory Coordinator: For purposes of IC 4-22-2-28.1, the Small Business Ombudsman designated by IC 5-28-17-6 is: Resources available to regulated entities through the small business ombudsman include the ombudsman's duties stated in IC 5-28-17-6, specifically IC 5-28-17-6(9), investigating and attempting to resolve any matter regarding compliance by a small business with a law, rule, or policy administered by a state agency, either as a party to a proceeding or as a mediator. SUMMARY/RESPONSE TO COMMENTS BMV requested public comment from June 18, 2025, through July 18, 2025, and during the public hearing on July 22, 2025. 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. REQUEST FOR PUBLIC COMMENT BMV is soliciting public comment on the proposed rule. Comments may be submitted in one of the following ways: COMMENT PERIOD DEADLINE All comments must be postmarked or time stamped not later than November 14, 2025. The rule, Regulatory Analysis, appendices referenced in the Regulatory Analysis, and materials incorporated by reference (if applicable) are on file at the Bureau of Motor Vehicles, Indiana Government Center North, 200 North Senate Avenue, Room N404, Indianapolis, Indiana and are available for public inspection. Copies of the rule, Regulatory Analysis, and appendices referenced in the Regulatory Analysis are available at the Bureau of Motor Vehicles office. This notice is the second of two (2) thirty (30) day periods in which the public may comment on the proposed rule. Following this second public comment period, BMV may adopt a version of the proposed rule that is the same as or does not substantially differ from the text of the proposed rule published in this notice. EXPLANATION OF DIFFERENCES IN PROPOSED RULE There are no differences between the proposed rule in this notice and the proposed rule published in the Notice of First Public Comment Period. PROPOSED 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. (Bureau of Motor Vehicles; 140 IAC 7-1.1-3; filed Nov 12, 2009, 3:44 p.m.: 20091209-IR-140090169FRA, eff Jan 1, 2010; readopted filed Nov 24, 2015, 4:18 p.m.: 20151223-IR-140150108RFA; filed Oct 5, 2017, 9:34 a.m.: 20171101-IR-140160492FRA; filed Feb 9, 2022, 3:34 p.m.: 20220309-IR-140210460FRA; filed Oct 3, 2023, 10:03 a.m.: 20231101-IR-140230394FRA; filed Oct 15, 2024, 2:33 p.m.: 20241113-IR-140240250FRA)