Shepard, S.J.
The Appellees initiated litigation seeking to compel the Indiana Bureau of Motor Vehicles and Commissioner Joseph B. Hoage to include a third gender option on driver’s licenses and identification cards. The trial court so ordered. Finding error, we reverse and remand with instructions.
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This Court has previously determined that “a challenge to the content of an agency’s rules and regulations was not properly raised in a petition for judicial review[] but is more appropriately considered in a declaratory judgment action.”…
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Thus, we conclude that while the petition for judicial review was untimely filed and therefore improvidently granted, the action for declaratory judgment and injunctive relief as it relates to Simmons, S.R., K.H, A.G., and S.D. may nevertheless proceed as it is a distinct action.
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In entering summary judgment for the Appellees on this issue, the trial court concluded that BMV’s cessation of allowing a gender designation of “X” on state credentials constituted a new administrative rule that was not promulgated pursuant to the ARPA and was therefore void.
It is well settled that administrative agencies may make reasonable rules and regulations to apply and enforce legislative enactments (i.e., statutes). Ind. Dep’t of Env’t Mgmt. v. Twin Eagle LLC, 798 N.E.2d 839, 847 (Ind. 2003). However, an administrative agency may only regulate by a new rule if it has first complied with the proper rulemaking procedures set forth in the ARPA, which include public hearings and review by executive branch officials. Villegas v. Silverman, 832 N.E.2d 598, 608 (Ind. Ct. App. 2005).
BMV argues its discontinuation of the use of the “X” gender designation was not a new “rule.” More particularly, BMV claims it properly reverted to its previous procedure of not using the non-binary gender marker because it had neither the statutory nor the regulatory authority to issue credentials bearing such a designation in the first place. Accordingly, we must begin by examining BMV’s authority.
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In this case, the Appellees contend the term “gender” means “gender identity”—how a person identifies themselves based on an internal sense—a definition that encompasses non-binary gender designations. On the other hand, BMV defines “gender” as synonymous with “sex”—i.e., the biological state of being either male or female. Based on this interpretation, BMV argues that, before a non-binary gender marker could be used on state credentials, a new gender designation would need to be created and implemented, and such actions are beyond the scope of BMV’s authority. Thus, the question presented here is whether the term “gender” in Section 9-24-11-5(a)(6) refers only to the binary biological classifications of male and female or whether it is a broader term that also includes non-binary classifications. As the legislature has not defined “gender,” we turn to the well-established rules of statutory interpretation.
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In sum, general-language dictionaries define “gender” as “sex.” They further state that typically there is no clear delineation between the two terms and when a distinction is made between them, it proves to be problematic. Further, our examination suggests the legislature incorporated the term “gender” into our state statute simply to comply with the federal REAL ID Act, and it has not embarked on creating a new gender designation, which it alone has the authority to do. Moreover, even since the 2007 amendment adding the term “gender,” Indiana driver’s licenses bear an “M” or “F” in the category entitled “Sex,” and other statutes within Title 9 likewise use “gender” and “sex” interchangeably.
Thus, until the legislature otherwise directs, we conclude “sex” is the definition of “gender” and understand the “gender” of a permittee or licensee, under Title 9 generally and under Sub-section 9-24-11-5(a)(6) specifically, to refer to the biological division of being either female or male. Applying that definition here, we hold the trial court erred in granting summary judgment for the Appellees on their claim that BMV violated ARPA by ceasing to issue identification credentials with non-binary gender designations.
B. Equal Protection Claim
BMV claims the trial court erred in concluding that the agency’s refusal to issue a non-binary designation on state credentials violates the Appellees’ Fourteenth Amendment right to equal protection by impermissibly treating them differently from persons who identify as binary.
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… Thus, neither the U.S. Supreme Court nor the Indiana Supreme Court has definitively recognized those individuals who identify as non-binary as a protected class under the Equal Protection Clause so as to trigger a heightened level of scrutiny. Accordingly, we believe the rational basis test represents the proper level of scrutiny to be applied here.
We turn then to a rational basis review, which requires us to determine whether the unequal treatment is rationally related to a legitimate governmental purpose….
BMV asserts its binary-only policy for state credentials is designed to accurately, consistently, and efficiently identify licensees. The agency indicates that recording an individual’s objective characteristic of sex better advances the state interest in accurate identification than would recording a person’s subjective non-binary identity. See Appellees’ Br. p. 15 (defining non-binary as “a term used by some people who experience their gender as not falling within the binary categories of man and woman”); see also Appellants’ App. Conf. Vol. II, p. 42 (Plaintiffs’ Compl.) (defining non-binary as term used to describe an individual whose “internal and inherent sense” of being does not fall into the binary categories of male or female). Additionally, identifying an individual’s sex on their state credentials promotes consistency within the system as other statutes require the licensee’s sex to be identified and recorded. See Ind. Code §§ 9-30-3-6(b), 9-30-6-16. Finally, BMV suggests that issuing credentials identifying an individual’s sex better serves to further administrative efficiency than reporting a subjective status with innumerable designations.
The Appellees, although denouncing BMV’s proffered objectives, fail to clearly demonstrate this classification is arbitrary and irrational in order to overcome the presumption of constitutionality. In the absence of such a showing by the Appellees, we find these to be legitimate government interests and conclude that the binary-only policy is rationally related to these goals. Thus, we reverse the trial court’s entry of summary judgment in favor of the Appellees on their equal protection claim.
C. Due Process Claim
Lastly, BMV contends the trial court erred by determining that the agency violated the Appellees’ right to informational privacy under the Fourteenth Amendment. Specifically, the trial court concluded the Appellees’ rights were infringed upon when they were forced to select a binary designation for their state credentials that is inconsistent with their gender status, thereby possibly revealing private health information.
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First and foremost, as this is not a claim relating to marriage, family, procreation, or the right to bodily integrity (e.g., refusal of unwanted medical treatment), the Appellees are seeking to expand the Supreme Court’s purposefully narrow concept of substantive due process. We think the statutes, case decisions, and structure weigh against doing so.
Furthermore, as we determined in Section B., supra, the Appellees have not shown Section 9-24-11-5 to be irrational or arbitrary in order to succeed on their constitutional claims. See Gibson, 760 F.3d at 614 (saying that rational and nonarbitrary state laws satisfy substantive due process). In addition, their due process claim seems to be speculative. They assert that when choosing between the binary designations for their credentials, non-binary applicants “will likely understand” they must select their sex assigned at birth and that “[i]n certain instances,” this disclosure will reveal an applicant’s non-binary status. Appellees’ Br. p. 54. And finally, it seems that the use of a non-binary designation such as “X” on their credentials discloses the Appellees’ gender status in the same manner they are attempting to avoid.
We hold the trial court erred in granting summary judgment for the Appellees on their substantive due process claim.
Conclusion
Based on the foregoing, we conclude the trial court erred by granting the Appellees’ untimely petition for judicial review. Nevertheless, as the action for declaratory judgment and injunctive relief is a distinct action, we rule on its merits.
Until the General Assembly determines otherwise, we hold that “gender” in Title 9 of the state statutory scheme means “sex” and conclude the trial court erred by entering summary judgment for the Appellees on their claim that BMV violated ARPA by ceasing to issue identification credentials with non-binary gender designations. In addition, we determine an individual’s non-binary status necessitates only the standard scrutiny of the rational basis test and, as Appellees were unable to demonstrate that there was no reasonably conceivable state of facts that could provide a rational basis for the classification, we conclude the trial court erred by entering summary judgment for Appellees on their equal protection claim. Finally, we decline the invitation to expand the category of substantive due process to include the Appellees’ claim and conclude that, because the trial court erroneously did so, it also erred by entering summary judgment for the Appellees on their due process claim.
Accordingly, we reverse the court’s grant of judicial review and summary judgment in favor of the Appellees and remand with instructions to dissolve the injunction against BMV and enter summary judgment and declaratory judgment for BMV consistent with this opinion.
Reversed and remanded with instructions.
Bradford, J., and Felix, J., concur