The ACLU of Indiana sued Indiana after it halted a practice of updating gender markers on birth certificates for gender-diverse Hoosiers. Photo by Whitney Downard, Indiana Capital Chronicle.

By Whitney Downard
Indiana Capital Chronicle

INDIANAPOLIS — The American Civil Liberties Union of Indiana filed a class action lawsuit on Friday, March 28 challenging a Gov. Mike Braun executive order that ended the process for updating gender markers on state documents, specifically birth certificates.

Complying with the order, the Vital Records Division of the Indiana Department of Health has halted the process for approving changes to gender markers that have been ordered by the courts.

“There’s no reason for this. (IDOH) was quite content prior to this executive order on March 4 to change gender markers on birth certifications,” said Ken Falk, the state chapter’s legal director. “It is unconstitutional.”

Gov. Mike Braun spokesperson Griffin Reid pointed to an accompanying release to the March 4 executive order and provided a statement Friday afternoon.

“As Gov. Braun observed when this was announced, replacing the scientific fact of biology with the always-changing, self-reported idea of ‘gender identity’ has negative consequences for women and kids. We have confidence in the Attorney General’s ability to defend the State in this matter,” Reid said.

Falk and Viktor Hughes, a trans man, spoke in a virtual press conference Friday afternoon. Hughes shared his experience navigating the process to change his gender marker and get legal documents matching his gender.

“Being able to change my identifying documents was really a pivotal moment for me. The entire process took about two years to complete from start to finish. But there are so many institutions that wouldn’t update it, no matter how much you spend,” Hughes shared.

Not having a matching ID made every day interactions precarious, whether picking up nieces and nephews from school or buying alcohol. Simply handing over a driver’s license invokes a “sense of dread that’s sitting in your gut because you don’t know how they’re going to react.”

“They’re expecting to see an ‘M’ on the license … and they see an ‘F,’” Hughes said. “And the changes that happen from that moment to the next are swift, sharp and sometimes severe.”

Falk noted that transgender people are more likely to be victims of violent crimes, so having a public document “out” them because it doesn’t match their appearance can be dangerous.

“We’re not talking about a piece of paper here,” Falk said. “So to have the state of Indiana say, ‘Look, we don’t care’ … it’s not just a slap in the face and just wrong, but it’s harmful.

“It’s a constant reminder that you are not who you are. And there’s probably — I’ve never felt it, but I can’t imagine anything worse than that,” Falk continued.

What about driver’s licenses? The lawsuit centers on birth certificates, though Hoosiers have reported getting letters from the Bureau of Motor Vehicles about their driver’s licenses warning them that nonbinary gender markers will no longer be used.

“My understanding is that, in the past, the BMV has been accepting affidavits from physicians who attest that a person’s gender identity is whatever they attest to,” Falk said. “… I do not know going forward what the policy of the BMV is.”

Braun’s Executive Order

Braun’s executive order mirrors a similar one from President Donald Trump, which he signed on his first day in office.

Viktor Hughes shares what changing a legal document’s gender marker means for transgender Hoosiers. Screenshot from Friday, March 28 Zoom with ACLU of Indiana.

Braun directs state agencies to respect the “biological binary,” defining sex, gender, woman, man, female and male. According to the text, gender is synonymous with sex, defined as a person’s “immutable biological classification as either male or female.”

The order does not acknowledge the existence of intersex or transgender Hoosiers.

“It is the official position of Indiana’s Executive Branch that modern gender ideology is inconsistent with this fundamental and deeply rooted legal distinction between men and women,” the order read. “Modern gender ideology attempts to replace the biological category of sex with an ever-shifting concept of self-assessed gender identity.”

Falk said that the ACLU wasn’t sure how many Hoosiers were getting their requests to change their birth certificates denied, saying “We will find out.”

The listed plaintiff is a 15-year-old girl who was born in Indiana but now lives in Ohio and can’t get an amended birth certificate.

“The Executive Order is disconnected from the reality that transgender persons and other gender-diverse persons exist in Indiana. The reality that gender identity may differ from the sex assigned at birth is a matter of science and medicine and also is recognized by courts, including the United States Supreme Court,” the lawsuit asserts.

Adopted Hoosiers or those changing their name can get updated birth certificates, which are used to get driver’s licenses, open bank accounts, enroll in school and more. Having a document with another gender can complicate access to these services for gender diverse Hoosiers.

“Have to present a birth certificate that identifies (the plaintiff) as ‘male’ will immediately create a risk of ‘outing’ her as transgender to all who view the birth certificate, or may result in others questioning whether her birth certificate is authentic or genuine as she has a female name and appears in all respects to be a girl and will only appear more feminine in the future,” the lawsuit said.

Previously, gender marker changes on birth certificates could occur following a court order.

The 19-page complaint maintains that the executive order violates privacy rights and discriminates against certain classes of Hoosiers, a violation of the Equal Protection Clause of the Fourteenth Amendment.