Hill: State Agencies Lack Authority to Designate Genders Other than Male or Female

(INDIANAPOLIS) – Under current law, state agencies have no rule-making authority to establish new gender designations in addition to male and female, Attorney General Curtis Hill said in an advisory opinion issued Monday. Such designations would require new legislation by the Indiana General Assembly, Attorney General Hill said.

Attorney General Hill issued the opinion following an inquiry from state Sen. Jim Tomes, who asked about a rule proposed in 2019 by the Bureau of Motor Vehicles. The rule would have enabled motorists to obtain driver’s licenses with a non-binary gender designation rather than be identified as either male or female. The BMV ultimately withdrew the rule after consultation with the Office of the Attorney General.

“Whether to add a non-binary gender designation is a policy question for the Indiana General Assembly,” Attorney General Hill said. “Under current state law, agencies have not been delegated the authority to offer a third non-binary gender option.”

The advisory opinion is attached.

Official Opinion 2020-3.pdf