Indiana Republicans Say They’re Banning Gender Marker Changes on IDs. They Left an Embarrassing Loophole.

While trying to ban trans people from changing their IDs, the Indiana Bureau of Motor Vehicles made a mistake and failed to remove language allowing for a “change in gender.”

Indiana Governor Mike Braun, who is responsible for recent attacks against transgender Hoosiers | Image: Wikimedia Commons

When Indiana Governor Mike Braun signed Executive Order 25-36—which mandates that the state’s Executive Branch must “respect and enforce the biological binary of man and woman” when “interpreting and applying Indiana law”—last March, its effects were immediate. Overnight and with no warning, Indiana became what was at the time the 6th state to ban trans people from amending their birth certificates.

While unlike Kansas’ law, this new policy isn’t retroactive, for transgender Hoosiers, it represented new hostility from one of the few Republican-controlled states that hadn’t yet implemented anti-trans policies beyond restrictions on sports and gender-affirming care for minors. And worse, it wasn’t just birth certificates that EO 25-36 affected.

That June, the Indiana Bureau of Motor Vehicles announced it was starting the process to ban gender marker changes on IDs as well. Beyond the executive order, the BMV also cites the 2024 case Bureau of Motor Vehicles v. Simmons, which held that for the purposes of Indiana law, “gender” is effectively synonymous with “sex.” Now, following two public comment periods, the new rule has now been finalised. While it’s worth noting that the final text of the rule itself has not been published, a spokesperson for the state’s Legislative Services Agency confirmed that it exactly matches—and according to Indiana law, must match—the most recent public version.

Starting next month, the BMV will only be able to “issue credentials containing a gender designation that reflects the applicant’s sex.” This reverses the state’s uncharacteristically progressive policy that has stood for 16 years, which allows trans residents to change their gender markers so long as they present an amended birth certificate or a note from a doctor stating their transition is permanent. In doing so, Indiana will become only the 5th state to ban gender marker changes on IDs and the 4th to do so in the past two years.

Or will it? Because, although the Indiana BMV claims this new policy will make it so that “biological sex” is displayed on driver’s licenses and ID, that isn’t exactly what the rule says. Yes, the explicit mechanism for gender marker changes has been removed, but, much like Iowa’s policy, this didn’t turn into a complete ban. Instead, keeping with other changes made in Indiana’s regulations as a result of EO 25-36, the main purpose of the new rule is to purge all references to the term “gender.”

And yet, the BMV appears to have made a mistake. In provision (b)(1)(B), the text, when listing acceptable proofs of identity, reads:

“A certified birth certificate, and, if applicable, a certified amended birth certificate showing a change in name, date of birth, or gender, filed with a state office of vital statistics or an equivalent state entity in the applicant’s state of birth.”

This text is also repeated verbatim in provision (d)(3)(A)(ii), which lists documents that demonstrate proof of a legal name change. In all other parts of the new policy, the term “gender” was removed. When comparing this to Iowa’s rule, its significance becomes even more apparent. Until the Iowa DOT changed it last year, the language in Iowa’s ID regulations relating to birth certificates was the following:

“A certified copy of a birth certificate and, if applicable, a certified amended or new birth certificate showing a change in name, date of birth, or sex, filed with a state office of vital statistics or equivalent agency in the applicant’s state of birth.”

This was then amended to read “a certified copy of a birth certificate and, if applicable, a certified amended or new birth certificate showing a change in name or date of birth, filed with a state office of vital statistics or equivalent agency in the applicant’s state of birth,” cleanly removing all references to any possibility of a gender marker change.

But because the policy stipulates that a gender marker must match what is displayed on the applicant’s primary document (unlike in Texas and Florida, where the agency’s record supersedes this), gender marker changes in Iowa are still technically possible—just difficult.

Indiana goes even further. Aside from failing to remove language that enables gender marker changes, there’s also no provision mandating that an applicant’s sex be verified against agency records despite a similar provision existing for an applicant’s name, date of birth, SSN, and address.

Thus, as long as an applicant has a reason—say, a name change or an initial REAL ID application—to force the bureau to review their fully updated birth certificate, the change of gender will also be accepted. Additionally, a passport (which can no longer be updated following November’s Supreme Court decision) may also work for this due to the absence of gender marker verification provisions.

That said, for those born in Indiana or one of the 7 other states that fully restrict birth certificates, getting the amended birth certificate necessary for this may prove to be a problem. Accordingly, before it takes effect in mid-February, trans Hoosiers who haven’t gotten their IDs updated should take advantage of the current policy (which requires only some medical transition) while they still can.

But, at least for those born in Indiana, these new restrictions may not last long once implemented. When the Indiana Department of Health banned birth certificate amendments for trans people, it did so in open defiance of legally issued court orders—which cannot be ignored.

In fact, this exact situation was contested in the 2014 Indiana Court of Appeals case In re Change of Birth Certificate, which led to the full legalisation of gender-related birth certificate amendments in the state. While the ACLU is suing the policy itself in federal court, IDOH’s refusal to honour court orders isn’t part of that case. Should it be challenged in state court on those narrower grounds, the birth certificate policy may fall. At that point, only the relatively moderate Indiana state legislature will be able to implement a ban.

Moreover, should the BMV wish to patch the loophole, that would require an entirely new, lengthy rulemaking process, and if it goes down this route, it’ll have to acknowledge an extremely embarrassing error. Furthermore, if the corrected policy is challenged in court, this mistake will greatly weaken any defense that hinges on a need for the BMV to implement EO 25-36.

But there’s still one question that needs to be asked: considering that policy was revised and approved by multiple different offices on its way to being finalised, how on earth did a mistake of this magnitude even happen?