Counting an Invisible Class of Citizens: The LGBT Population and the U.S. Census

Abstract

Due to past discrimination, recent U.S. Supreme Court cases and federal legislation have expanded the legal rights of LGBT citizens in marriage equality (Obergefell v. Hodges, 576_US 2015; U.S. v. Windsor, 570 U.S. 2013), sexual privacy (Lawrence v. Texas, 539 U.S. 558, 2003), military service (repeal of Don’t Ask Don’t Tell Act of 1993), and hate crime protection (The Matthew Shephard and James Byrd, Jr. Hate Crimes Prevention Act of 2009). These policy milestones laid the foundation for securing additional rights. However, in 2017 the U.S. Census Bureau announced it would not collect LGBT demographic data, specifically sexual orientation and gender identity, in the upcoming 2020 Census (Thompson, 2017) representing a major setback to LGBT citizens who viewed it as creating an invisible class of citizens. Gleaning from the framework of social equity (Frederickson, 2010; Johnson, & Svara, 2011) and intersectionality (Crenshaw, 1989a), this manuscript evaluates the U.S. Census Bureau’s decision to omit LGBT demographic data. Using the agency's data as the standard, empirical evidence supports the inclusion of LGBT demographic variables in the census. Policy recommendations are provided to ensure LGBT citizens are included in the census and assimilated into mainstream America.

Keywords:

• LGBT
• census
• social equity
• equality
• justice

The census, which provides a national headcount and portrait of the country, is critical to our democracy. The founding fathers believed it was essential to the republic and mandated its requirement in the U.S. Constitution. Article I, Section II, states: “The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of 10 years, in such manner as they shall by law direct.” The first census of the U.S. population was completed in 1790, and has been conducted every decade since its inception. The Census Bureau, an agency under the U.S. Department of Commerce, provides data on our 323 million citizens to decide political boundaries and allocation of government funding and programs.

Decennial data at the census block level are used by government entities for redistricting, i.e., defining the representative boundaries for congressional districts, state legislative districts, school districts and voting precincts. Additionally, decennial data are used to enforce voting rights and civil rights legislation. (U.S. Census Bureau, October 27, 2017, p. 5)

The census provides data on the nation’s economy and people by providing population and housing estimates (U.S. Census Bureau, March 18, 2017, p. 2). The data are used for three core purposes: (1) apportionment, (2) allocation, and (3) enforcement. First, census data are used to determine political apportionment. The census counts the number and location of citizens to ensure fair political apportionment for the House of Representatives, and it defines state legislative districts. As the population changes, it impacts the total number of representatives allotted to each district, which is the reason it is important to achieve a fair and accurate count. Second, census data is utilized to allocate federal funding. It is used to distribute over $400 billion in government funding for schools; law enforcement; housing; and other programs (U.S. Census Bureau, n.d.; Abramsky, 2017; Foran, 2017). The data are used to determine the location of infrastructure, such as where roads and hospitals should be built and what services need to be provided and to whom. For example, census data are used to determine where U.S. passport facilities and libraries should be located. As such, it is used by all three levels of government as well as the private and nonprofit sector. Third, census data are also used to “enforce laws, regulations and policies against discrimination in government programs and in society” (U.S. Census Bureau, March 28, 2017, p. 9). For example, data on gender and race are used to ensure compliance with equal employment opportunity under the Civil Rights Act of 1964 (https://www.gpo.gov/fdsys/pkg/STATUTE-78/pdf/STATUTE-78-Pg241.pdf; U.S. Equal Employment and Opportunity Commission, n.d.). The agency operates under the authority of U.S. Code, Title 13 (United States Code, Office of the Law Revision Counsel, n.d.). The census (https://www.gpo.gov/fdsys/pkg/USCODE-2013-title13/pdf/USCODE-2013-title13-chap5-subchapII-sec141.pdf) requires that the list of subjects be submitted to Congress at least 3 years before the census date (U.S. Census Bureau, March 2017, p.1). The deadline for planned subjects in the 2020 census was March 31, 2017.

Problem Definition

On March 28, 2017, three days before the submission deadline, the U.S. Census Bureau announced that sexual orientation and gender identity would not be counted as planned subjects in the 2020 Census and the American Community Survey (ACS) (Thompson, 2017; U.S. Census Bureau, March 28, 2017). The announcement came after a previous announcement that the two LGBT demographic categories would be included in the upcoming 2020 census (Dinan, 2017). It was rumored that the Trump administration intervened and reversed the decision to include LGBT (lesbian, gay, bisexual, and transgender) data (Dinan, 2017). As such, the 2020 census will count the same five demographic variables or “planned subjects” it has historically collected: (1) age; (2) race; (3) gender; (4) relationship; and (5) home ownership (Thompson, 2017). Sexual orientation and gender identity will not be included. The U.S. Census Bureau Director, John Thompson, who resigned shortly after the announcement (Foran, 2017; Sweetland, 2017), stated there was no “federal data need” (March 29, 2017, p. 1 to collect LGBT data: no statutory or regulatory requirements. The decision to omit LGBT demographics was consistent with past U.S. Census Bureau policy. However, the agency’s 2017 decision came two years after the U.S. Supreme Court ruling Obergefell v. Hodges (2015), which legalized and recognized same sex marriage at the federal level; a major milestone in advancing LGBT rights. It was assumed that because the definition of marriage had changed (U.S. v. Windsor, 2013; Wyatt-Nichol & Naylor, 2015), and the U.S. Supreme Court legalized gay marriage (Obergefell v. Hodges, 2015), the census would capture the legal changes in marital relationships by including sexual orientation.

Political Debate: Inclusion/Exclusion of LGBT Variables

The agency’s decision to exclude LGBT citizens in the 2020 census sent shock waves throughout the LGBT community and civil rights groups (Tashman, 2018; Dinan, March 28, 2017; Human Rights Campaign, 2017; Jones, 2017; National Gay and Lesbian Task Force, 2017; O’Hara, 2017). LGBT Americans want to be counted and included in the census. Advocates and civil rights groups, such as the American Civil Liberties Union (ACLU), argued the decision not to include LGBT demographics was an attempt to exclude LGBT citizens from the allocation of federal dollars; “erase” LGBT citizens from American society (O’Hara, 2017); and create an invisible class of citizens. As Guy (2018) and Guy, Newman, and Mastracci (2008) point out, it is important that citizens feel good about their interactions with government, and in this case, LGBT citizens feel erased. Exclusion from the census is significant because it means fewer public resources, less political representation, and possibly fewer legal protections. For a class of citizens that has been historically discriminated against (Dolamore & Naylor, 2017; Swan, 2014) and killed (U.S. Federal Bureau of Investigation, 2016) the consequences can be profound. If a class of citizens is not identified and counted, its members cannot be represented and measured in federal data. At a minimum, it places the LGBT community at a data disadvantage. Their political voice is weakened, and their ability to assimilate in mainstream America is significantly diminished.

In contrast, opponents argue that LGBT demographic data should not be collected in the census. Specifically, there is no legislative mandate or federal data need to include LGBT demographics in the census (Thompson, 2017). They argue there is no federal law or statutory requirement to collect data, which is consistent with the position of the Trump Administration (Dinan, 2017). Omission of LGBT demographics does not decrease their rights as citizens: they can still vote; serve on juries; pay taxes; and marry. Moreover, LGBT population and marriage estimates are currently provided without including LGBT demographic variables in the census. For example, the Williams Institute (n.d.) has provided LGBT population estimates for free to the public for years (see Flores, Herman, Gates, & Brown, 2016; Gates, 2015, 2017). As such, LGBT demographic data does not need to be counted in the U.S. census. Equally important are religious and moral considerations. Conservative Christians believe that homosexual behavior goes against the teachings of the Bible (see Leviticus 18:22; 20:13; Romans 1:26–27; I Corinthians 6:9). As such, conservative Christians believe homosexual behavior and same-sex marriage are morally wrong (Wyatt-Nichol & Naylor, 2013, 2015). In sum, the political demarcation on collecting LGBT census data is consistent with the larger political debate on LGBT rights; liberals support LGBT rights, and conservatives oppose it. At the core of this political debate is citizenship. Who counts, who is represented, and how much?

RESEARCH QUESTIONS

Relying on empirical data this research evaluates two components of the policy debate: (1) federal data need, and (2) equal rights. The first research question asks whether there is a federal data need to include LGBT citizens in the census. The second research question asks whether LGBT citizens are being treated equally (the same) and equitably (fairly) compared to heterosexual citizens? The “federal data need” rationale for including other demographic variables as planned subjects (Thompson, 2017) is applied to the LGBT demographic variables of sexual orientation and gender identity. Can the census be accurate if 10 million American LGBT citizens, which includes 123,000 same sex marriages, are not included (Gates, 2017)? What about citizens who identify as transgender? Are they fully represented as citizens? Relying on the U.S. Constitution, U.S. Supreme Court rulings, and theories of social equity and intersectionality, the exclusion of LGBT demographics is analyzed. First, U.S. citizenship is discussed.

U.S. CITIZENSHIP

It is a privilege to be a U.S. citizen. According to U.S. Supreme Court Judge Brandeis, “The only title in our democracy superior to that of President [is] the title of citizen” (Brandeis University, n.d.; U.S. Citizenship and Immigration Services, 2014, p. 2). The citizenship clause of the Fourteenth Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As citizens, we are bound by the principles and values outlined in the U.S. Constitution and the Declaration of Independence. The U.S. Constitution affords each individual specific freedoms, protections, and responsibilities. Protections include natural or “unalienable” rights, such as due process; freedom of speech; freedom of the press; freedom of religion; right to bear arms; right to trial by a jury; right to vote; and the right to run for elected office. It is a quid pro quo model in which loyalty and allegiance are exchanged for protection; liberty; and freedom. In addition, Americans have specific responsibilities as citizens. Responsibilities include jury duty; paying taxes; military draft; obeying the law; and defending the Constitution.

U.S. citizenship is based on the principle in the Preamble of the Declaration of Independence that all people are created equal. All of our founding documents either implicitly or explicitly state this right. From the beginning, American government has recognized the importance of equal treatment of citizens. This research asks whether LGBT citizens are being treated equal. Do LGBT citizens enjoy the same equal protections as other marginalized and vulnerable citizens? According to the preamble to the Declaration of Independence, “All men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” According to the National Archives, the U.S. Constitution “united its citizens as members of a whole, vesting the power of the union in the people” (https://www.archives.gov/founding-docs/constitution). As such, the Preamble to the U.S. Constitution states, “We the people of the United States.” In addition, the Civil Rights Act of 1866 states: “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States” (https://www.loc.gov/law/help/statutes-at-large/39th-congress/session-1/c39s1ch31.pdf).This means that LGBT Americans are also citizens. Citizenship is a social contract, and American democracy is based on a contractual theory of government (Locke, 1689/1988). It is a covenant between an individual and country. What about American LGBT citizens? Do they have the same legal contract with the U.S. government? Are LGBT citizens afforded the same rights and protections as heterosexual citizens in exchange for allegiance?

The census, which is mandated by the U.S. Constitution, provides a national headcount and portrait of our country and its citizens. It is supposed to be “the authoritative source on where people live, the types of families they establish, how they identify themselves, [and] the jobs they hold” (Farley & Haaga, 2005, p. 2). This includes LGBT citizens. Proponents argue that by omitting LGBT citizens from the census they are not represented in the country’s portrait because their family household portrait looks different than their heterosexual counterparts as a result of the legalization of same sex marriage (Obergefell v. Hodges, 2015). Because LGBT demographics are not counted as such in the census, they cannot be equally represented or equally protected. Proponents argue they are denied the privilege of U.S. citizenship as guaranteed in the Constitution.

In the book titled Who Counts, authors Anderson and Fienberg (1999) argue that the census establishes political power, which is determined by who is counted and who is left out of the census. The authors refer to the documented undercounting of the urban minority population (Anderson & Fienberg, 1999), but the same logic can be applied to LGBT citizens, who are not undercounted but simply not counted at all. They are treated differently than other marginalized citizens. One example is race. In 2000, the decade census began counting people who identified by more than one race (Farly & Haaga, 2005). Since then, the U.S. Census Bureau has gone to great lengths to ensure that race in its many forms (biracial and multiracial) is counted. Counting multiple races is difficult but obtainable. There are numerous documents published by the U.S. Census that define and operationalize the terms race and minority to ensure accurate data collection of the population by race (see U.S. Census Bureau, February 28, 2017; U.S. Office of Management and Budget, 2016). The documents operationalizing race exceed 300 pages. Today, being multiracial or biracial is part of the American lexicon. Similarly, the U.S. Census Bureau could operationalize the terms sexual orientation and gender identity. The decision to exclude LGBT demographic data from the census has significant consequences on political representation, government resources, power (Anderson & Fienberg, 1999), as well as symbolic implications for citizenship.

SOCIAL EQUITY & INTERSECTIONALITY

Two theories guide this research: (1) social equity (Frederickson, 1974, 2005; Gooden, 2014; Johnson, 2012; Johnson & Svara, 2011; Norman-Major, 2011), and (2) intersectionality (Crenshaw, 1988,1989a, 1989b). Both theories have implications for the field of public administration and government institutions.

SOCIAL EQUITY

The purpose of the U.S. government is to promote the general welfare, provide defense, and solve social problems. In order to fulfill its obligations to citizens, the federal government must recognize all its citizens and uphold their legal rights. The field of public administration, which studies government performance, has historically focused on government institutions rather than the problems to be solved by government (Wyatt-Nichol, Brown & Haynes, 2011), but the incorporation of social equity in the field of public administration expanded its values and obligations. The first three pillars of public administration, known as the three Es, focus on traditional, long standing values: (1) economy, (2) efficiency, and 3) effectiveness (Frederickson, 1974, 2005, 2010; Gooden, 2014; Johnson, 2012; Norman-Major, 2011; Oldfell et al., 2005). The fourth pillar, social equity, was not introduced until the 1960s at the Minnowbrook Conference. Attendees were concerned about values and who was being served by government. The New Public Administration movement focused on fairness and justice. H. George Frederickson who is given credit for coining the term considers social equity the basis for a democratic society (1974). In regard to public policy, Frederickson argues that there are two critical questions: “[I]s the existing public program effective or good and for whom is the program [or policy] effective or good?” (2005, p. 36). In this case, is the agency decision to omit LGBT demographics from the census good for LGBT citizens?

Perhaps because social equity entered the public administration lexicon late, it has not received the same emphasis in the literature as economy, effectiveness, and efficiency. Norman-Major (2011) argues social equity has not received equal footing as its peers, because it is more difficult to define and measure than economy, effectiveness, and efficiency. To ameliorate this problem several definitions have been put forth. Shafritz and Russell define social equity as “[f]airness in the delivery of public services; it is egalitarianism inaction—the principle that each citizen, regardless of economic resources or personal traits, deserves and has the right to be given equal treatment by the political system” (Shafritz & Russell, 2002, p. 395). The National Academy of Public Administration (NAPA) Standing Panel on Social Equity offers a slightly different definition. It defines social equity as:

The fair, just, and equitable management of all institutions serving the public directly or by contract, the fair, just and equitable distribution of public services and implementation of public policy; . . . and the commitment to promote fairness, justice, and equity in the formation of public policy. (NAPA, n.d.)

In the book Justice for All, authors Johnson and Svara (2011) provide a definition of equality, which is related to equity. It “means that each individual is treated in the same way as others” (Johnson & Svara, 2011, p. 11). Assuming that all people are created equal, then we must ensure that all U.S. citizens are treated equally, and provide equal access to government services, funding, and political representation. A mechanism to incorporate these values is through a professional codes of ethics. The American Society for Public Administration (ASPA), which is one of the leading professional associations for academics and practitioners in public administration has included social equity in its Code of Ethics. Principle 4 states: “Strengthen Social Equity. Treat all persons with fairness, justice and equality and respect individual differences, rights and freedoms, promote affirmative action and other initiatives to reduce fairness, justice and inequality in society” (ASPA, 2013). Based on the above definitions, the U.S. Census Bureau’s decision to omit LGBT demographics does not comport with the value of social equity. LGBT citizens are not included in the demographic data (also known as planned subjects) collected by the census and therefore are not represented in the country’s population estimates. Specifically, transgender and bisexual Americans are not acknowledged in the census or political portrait.

INTERSECTIONALITY

The theory of intersectionality (Crenshaw, 1989a) is critical to the policy debate on census data. It focuses on the interplay of multiple group identities within an individual. Intersectionality theory, which was introduced by Crenshaw (1988, 1989a, 1989b), highlights the different experiences between a White woman and Black woman in terms of power and social class. Being female is not a homogenous experience. It varies by race and other variables, such as social class, creating power disparities. Intersectionality theory argues that as individuals our multiple group identities (age; gender; race; ethnicity; sexual orientation; and social class) interplay and shape our experience in society. Specifically, multiple marginalized identities can lead to oppression based on the interplay and compounding of these identities. In a society where being “White” is the norm, those who are Black and female experience discrimination due to both race and gender (multiple identities). The Intersectionality framework would argue that a Black, lesbian female represents multiple individual marginalized identities (race, gender, and sexual orientation), and when the three identities are compounded together, it can lead to further marginalization and long-term oppression. In comparison, because being White is the norm, White LGBT members endure discrimination based on a single identity (sexual orientation), not multiple marginalized identities (race and sexual orientation), falling outside the intersectionality framework.

Multiple marginalized identities directly pertain to census data. A Black transgender woman will experience life differently than an affluent White heterosexual woman based on their identities being female and of a specific race. A White heterosexual man will have different experiences than a Black transgender male. There is a different dynamic or interplay among the identities of gender, race, and sexual orientation. Intersectionality theory argues that because the LGBT is unique and shape’s one experiences differently than straight individuals, it is critical that gender identity and sexual orientation be included in the census. Our experiences as Americans vary greatly by gender; race; ethnicity; sexual orientation; and social class (as well as religion). Intersectionality theory comports with social equity theory and guides this research.

Measuring Social Equity

In addition to defining social equity, Svara and Brunet (2005) coupled with NAPA went a step further and identified a set of measurement criteria for social equity for capturing equal and fair treatment of different groups of Americans. They (Svara & Brunet, 2004, 2005; NAPA, n.d.) outline four criteria:

1. Procedural fairness—under which due process, equal protection, hiring, promotion, awarding of contracts are all guaranteed.

2. Distributional equity—assures equal access, targeted intervention, and commitment of resources to achieve fair results.

3. Process equity—guarantees consistency in the level of service delivery regardless of distributional criterion used, and

4. Outcome disparities—probe for reasons why disparities may still exist as a result of policies and programs that may in fact meet all input criteria. (www.NAPA.wash.org/aa_social_equity/index.html)

The four NAPA social equity criteria identified above are applied here to evaluate if LGBT citizens are treated fairly and equally, and if there is a federal data need.

Procedural Fairness

The first social equity criterion, procedural fairness, includes: due process; equal protection; nondiscrimination in hiring, promotion, and awarding of contracts (NAPA, n.d.). In regard to government contracting, the U.S. Small Business Administration (SBA) is a federal agency that ensures disadvantaged groups have fair access to federal contracts. It ensures small businesses receive a fair portion of government contracts (https://www.gpo.gov/fdsys/pkg/CFR-2012-title13-vol1/pdf/CFR-2012-title13-vol1-part127-subpartB.pdf). The SBA provides federal contract set asides to women, minorities, or disabled veterans. It gives preference for federal contract “set-asides” based on the classification of economically or socially disadvantaged groups [8(a) requirements] through the SBA (https://www.gpo.gov/fdsys/pkg/CFR-2009-title13-vol1/pdf/CFR-2009-title13-vol1-part124.pdf). In 2011, this equated to roughly $109 billion set aside for small businesses. The federal contracting program known as the Women-Owned Small Businesses (WOSB) assists economically disadvantaged female headed organizations to compete for federal contracts. The same is true for minority-owned businesses, which must meet the criteria of socially and economically disadvantaged. The 8(a) Business Development Program defines socially disadvantaged as being Black, Hispanic, Native American, Asian Pacific or subcontinent Asian American (cf. Small Business Act: https://www.gpo.gov/fdsys/pkg/STATUTE-67/pdf/STATUTE-67-Pg230.pdf). Five percent, or approximately $24 billion, is set aside for small minority-owned businesses. This means that minority-owned businesses are eligible to receive $24 billion in government funding. However, LGBT citizens are excluded from applying (unless they are a minority, female, or veteran), creating unequal procedural access for White gay men. This does not mean that women, minorities, or disabled veterans should not receive federal contracting set-asides; these groups should receive set-asides. It simply means that LGBT citizens, which are also a socially and economically disadvantaged group (Cray, Miller, & Durso, 2013; Dolamore & Naylor, 2017; Swan, 2014), are not receiving federal set-asides despite compelling evidence of discrimination and marginalization. LGBT citizens can apply for federal set-asides if they are minority, veteran, or female. This research asks the question: Should White LGBT citizens, who have been discriminated against based on sexual orientation, receive federal set-asides? This question is supported by social equity theory (not the intersectional framework).

Distributional Equity

The second criterion, distribution equity, emphasizes the fair utilization of resources. It is applied to housing, which is a key variable in the census. According to federal government reports, there is evidence that LGBT citizens are discriminated against in housing and federal loans, thus creating a federal data need. According to the U.S. Department of Housing and Urban Development (HUD), Equal Access Rule, Final Rule (U.S. Department of Housing and Urban Development, 2016):

[There is] evidence suggesting that LGBT individual and families are being arbitrarily excluded from housing in the private sector. Such information was of special concern to HUD, which as the nation’s housing agency, has the unique charge to promote the federal goal of providing decent housing and a suitable living environment for all. It is important not only that HUD ensure that its own programs do not involve discrimination against any individual or family otherwise eligible for HUD-assisted or insured housing, but that its policies and programs serve as models for equal housing opportunity.

This documented discrimination demonstrates a federal data need to collect LGBT data. Census data are utilized to ensure compliance with equal opportunity, antidiscrimination laws, and access to government programs. The omission of LGBT variables in the census creates a data disadvantage.

In addition, HUD, a federal agency, offers grants to reduce homelessness among LGBT teenagers. The federal program policy manual specifically states there is a need to collect data on LGBT youth. According to the HUD Youth Homelessness Demonstration Program: “In order to effectively implement a system that addresses the needs of youth experiencing homelessness, Continuums of Care (CoCs) must understand the subgroups of unaccompanied youth—including pregnant and parenting, LGBTQ, and minor age youth—experiencing homelessness and the unique challenges they face within their communities” (U.S. Department of Housing and Urban Development, 2016, p. 5). To ensure LGBT homeless youth are being provided adequate services, it is critical to know how many of them identify as LGBT. This example serves as a documented federal data need in housing for LGBT citizens.

Process Equity

The third criterion, process equity, “guarantees consistency in the level of service delivery regardless of distributional criterion” (NAPA, n.d). This means the process (systematic steps to obtaining an outcome) is the same for each citizen. For example, when applying for Social Security benefits, the same criteria are used and applied to all applicants regardless of gender; race; ethnicity; or sexual orientation. A well-documented area involving process discrimination is housing. Housing discrimination against minorities and women is well documented (Gooden, 2014; Rothstein, 2017; U.S. Department of Housing and Urban Development, 2018). In fact, housing segregation or “redlining,” which denied Blacks’ access to mortgages near White neighborhoods, was the result of 1930s federal legislation (Rothstein, 2017). Today, the federal government operates under the Fair Housing Act or Title VIII of the Civil Rights Act of 1968 (https://www.gpo.gov/fdsys/pkg/STATUTE-82/pdf/STATUTE-82-Pg73.pdf) and the U.S. Department of Justice Title VI regulations (https://www.gpo.gov/fdsys/pkg/CFR-2004-title28-vol1/pdf/CFR-2004-title28-vol1-sec42-101.pdf). The Fair Housing Act protects people from housing discrimination in renting, purchasing, or financing. According to the U.S. Department of Housing and Urban Development (HUD), the law protects discrimination based on race; color; sex; disability; religion; national origin (U.S. Department of Housing and Urban Development, 2012). As a result of documented housing discrimination against LGBT citizens, in 2012, sexual orientation and gender identity were added to the list of protected classes against housing discrimination (https://www.gpo.gov/fdsys/pkg/FR-2012-02-03/pdf/FR-2012-02-03.pdf, p. 5662). In turn, this final rule (federal policy) created a documented federal data need to identify citizens based on sexual orientation and gender identity. Without the data, it is more difficult to ensure Title VI compliance.

Outcome Disparities

The last social equity criteria are outcome disparities. Disparities refer to the gaps in outcomes between different groups based on demographic characteristics including gender; race; age; sexual orientation; disabilities; etc. The disparities between LGBT citizens and heterosexual citizens are well documented. LGBT citizens have worse outcomes than do their heterosexual peers. LGBT citizens are more likely to be victims of bias, harassment, and discrimination than their heterosexual counterparts (Cray et al., 2013; Dolamore & Naylor, 2017; Johnson, Rivera, & Lopez, 2017; Kaiser Family Foundation, 2018; Lick, Durso, & Johnson, 2013). LGBT youth are more likely than their heterosexual peers to suffer from violence; rape; depression; substance abuse; homelessness; poverty; and mental illness (Cray et al., 2013; Dolamore & Naylor, 2017; Kaiser Family Foundation, 2018). Young gay men are more likely to be beaten and killed than their straight peers based on sexual orientation (U.S. Federal Bureau of Investigation, 2016; Kaiser Family Foundation, 2018). LGBT citizens are more likely to have chronic health conditions and disabilities than their heterosexual counterparts (Lick et al., 2013). LGBT citizens are more likely to be poor, which is significant, because they are less likely to own homes or afford children. LGBT citizens are less likely to raise children: 40% of married heterosexual couples have children compared to 18% of gay couples (Gates, 2015). These documented outcome disparities have a significant impact with long lasting consequences for LGBT citizens and are directly relevant to the census, which captures housing needs, relationships, and family size. (For a full discussion of LGBT youth disparities, see Dolamore & Naylor, 2017). These documented outcome disparities create a federal data need.

Application of intersectionality and social equity theory broadly and the four NAPA social equity criteria specifically demonstrate that excluding LGBT demographic data from the census does not comport with the social equity pillar or value. In three of the criteria (disparities, process, and distributional equity), there is a clear federal need based on federal legislation and policy. The fourth criterion, outcome disparities, demonstrates clear and compelling evidence that LGBT citizens have been discriminated against. These disparities are significant because they document the marginalization of LGBT citizens. Similar to other disadvantaged populations it is important to collect federal data to uphold antidiscrimination policies, and ensure discrimination is documented and addressed by government programs.

FEDERAL DATA NEED

The second component evaluated is the federal data need. The U.S. Census Bureau issued a public statement that there was no federal data need for LGBT demographics in the upcoming census. The former U.S. Census Bureau Director, John Thompson, who resigned shortly after the announcement (Foran, 2017), specifically wrote there was no “federal data need” (Thompson, 2017, p. 1) to collect LGBT data: no statutory or regulatory requirements to collect data on sexual orientation or gender. Given that census data are used to enforce laws and policies to prevent discrimination, is this conclusion accurate? An overview of the agency decision is provided below followed by an evaluation.

Agency Decision

According to the U.S. Census Bureau agency report titled Subjects Planned for the 2020 Census and American Community Survey:

Regular content reviews are conducted to ensure that the information collected through the decennial census program is required by federal programs. Beginning after the 1990 census, the U.S. Office of Management and Budget (OMB) in conjunction with the Census Bureau asked federal agencies to provide information describing their data needs. The information updated each decade by subsequent changes to federal legislative requirements, is used to evaluate content considered for the decennial census program. To prepare for the 2020 Census, OMB and the census Bureau embarked on a comprehensive review including chartering the Interagency Council on Statistical Policy (ICPS) Subcommittee on the ACS and conducting the 2014 ACSS Content Review. This effort was designed to examine and confirm the value of each question on the ACS, and to confirm and update the statutory and regulatory authority for the questions with federal agencies. In 2016, the Census Bureau asked federal agencies to provide any updates to this documentation. (U.S. Census Bureau, March 29, 2018, p. 1)

Based on the process outlined above the agency concluded there was no federal data need to collect LGBT demographic data.

Planned Subjects

According to the report titled Subjects Planned for the 2020 Census and American Community Survey Subjects, data collected from the U.S. census is used to: (1) ensure equal opportunity; (2) provide assistance; and (3) enforce anti-discrimination laws. Specifically, the report states:

Statistics are used to enforce laws, regulations and policies against discrimination in government programs and in society. This applies to age, gender, race, and ethnicity. For example, gender data are used in planning and funding government programs and ensure equal opportunity. Gender statistics are used to “[know] whether people of different genders have the same opportunities in education, employment, voting and home ownership, and many other areas of interest.” (March 29, 2018, p. 9)

Using the same logic described above for gender (as well as race, age, and relationships), the demographic variables of sexual orientation and gender identity can be used to ensure equal opportunity and enforce antidiscrimination laws. These are addressed below.

Ensure Equal Opportunity

The standard or rationale identified in the U.S. Census Bureau’s Planned Subjects ruling for including demographic variables is to know whether a specific group has the same opportunities in education; employment; voting; and home ownership. Similarly, it is important to know if these same opportunities are available for LGBT citizens. To capture these data, demographic questions need to be asked regarding sexual orientation and gender identity. Currently, gender is defined as either male or female by the US. Census (U.S. Census Bureau, March 2017). The assumption is birth sex, not chosen sex. In sum, the definition does not include citizens who are transgender. Do transgender citizens face discrimination? Do they have the same access to opportunity? If transgender citizens are discriminated against should they be included and protected against discrimination? There is clear compelling evidence that transgender citizens are discriminated against and even killed due to their gender identity. According to the National Center for Transgender Equality, transgender individuals are more likely to live in poverty, and face discrimination; harassment; psychological distress; and violence than their peers (National Center for Transgender Equality, 2016). A 2015 transgender survey reported that approximately half of transgender survey respondents reported being sexually assaulted, and 39% were experiencing psychological distress (National Center for Transgender Equality, 2016). In regard to poverty, roughly 30% were living in poverty compared to 12% of the U.S. population, and those of color were three times more likely to be poor (National Center for Transgender Equality, 2016). In addition, transgender individuals are more likely to experience violence than their heterosexual peers. The beating of Chrissy Polis, a transgender woman, in a McDonald’s outside Baltimore, Maryland, which went viral on YouTube is an example of a hate crime (Fenton, 2011; Rosen, 2011). In a report titled “Violence Against the Transgender Community in 2018,” the Human Rights Campaign reports that approximately 20–25 transgender individuals are murdered each year in the United States, and in 2017, at least 28 documented transgender individuals were killed in the United States (Human Rights Campaign, 2018). In sum, there is clear, documented evidence of discrimination, ranging from poverty to murder, creating a federal data need for collecting transgender as well as sexual orientation data.

Enforce Antidiscrimination Laws

A second criterion for collecting data is enforcement of antidiscrimination laws (U.S. Census Bureau, 2017). As such, antidiscrimination laws create a federal data need. An example of an antidiscrimination law targeting sexual orientation and gender identity is the Matthew Shephard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 (https://www.gpo.gov/fdsys/pkg/PLAW-111publ84/pdf/PLAW-111publ84.pdf). Congress passed the law as a result of the brutal killing of Matthew Shephard, a gay man, who was beaten and murdered in 1998 near Laramie, Wyoming (as well as the murder of a Black man named James Byrd). There is evidence that young gay men are more likely to be beaten and killed than their straight peers based on sexual orientation (Kaiser Family Foundation, 2018). The 2009 Act expanded the federal definition of hate crimes to include gender identity and sexual orientation. According to the U.S. Justice Department, the legislation provides federal protections against crimes based on gender; gender identity; sexual orientation; and disability (U.S. Department of Justice, 2017). The U.S. Federal Bureau of Investigation (FBI) collects data on hate crimes (U.S. Federal Bureau of Investigation, 2016), but reporting by law enforcement is voluntary (Astor, 2017), although approximately 89% of law enforcement agencies participate in the FBI’s uniform crime reporting system (U.S. Federal Bureau of Investigation, 2016). The FBI’s 2016 Hate Crimes Statistics Data states that of the offenses by bias motivation: 58% were motivated by race/ethnicity; 21% by religion; 18% by sexual orientation; 1% by disability; and less than 1% by gender bias (U.S. Federal Bureau of Investigation, 2016). The Matthew Shephard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 is a clear example of a federal data need to collect LGBT demographic data, specifically that of sexual orientation and gender identity. If LGBT citizens, which are a marginalized group, are to be treated fairly and equally, then LGBT demographic data should be included in the census to ensure compliance with antidiscrimination laws and equal opportunity laws.

IMPLICATIONS

As illustrated above, who is counted in the census is important, and who is not counted in the census is equally important. Those left out are shortchanged. The U.S. census, which is mandated by the Constitution, is a powerful instrument. It collects data on where citizens live and more specifically, which citizens live where. It determines political boundaries and representation. Basically, “it determines who gets what, when and how” (Laswell, 1936/1961). If you control the census, you control the money and the country (Abramsky, 2017).

The power of the census data goes far beyond the drawing of political districts: hundreds of billions of dollars of federal money are allotted each year based on complex population formulas. If the census over-counts certain groups, then those people and the locations they live in disproportionately benefit from government expenditures; and, by contrast, if the census under-counts groups, those groups are systematically short-changed. And, since census data are used to work out where people of varying ethnic and national backgrounds live, getting the census right is also vital for a fair enforcement of civil rights laws, ranging from protecting equal access to housing through to education investments and desegregation of public schools. (Abramsky, 2017, p. 8)

According to Ken Pruit, a former director of the U.S. Census Bureau and author of What Is “Your” Race,? if the Census Bureau undercounts a particular group, all other surveys carried out by the government over the next 10 years “will reproduce that statistical error (Pruit, 2013). The statistical error would be widespread impacting the entire nation, either over-representing or under-representing specific populations” (Farrell, 2017). By omitting LGBT demographics in the census, this already vulnerable population is erased from public policy, and, therefore, not eligible for a portion of public dollars, which can create additional marginalization and greater disparities.

The U.S. Census Bureau justifies asking questions about gender, race/ethnicity based on statutory need and changes in American society. For example, according to the Subjects Planned Handbook, gender and race/ethnicity are asked to understand changes in American society. These changes include “knowing whether people of different genders have the same opportunities in education; employment; voting; home ownership; and many areas of interest to researchers, advocacy groups, and policymakers” (U.S. Census Bureau, 2017, p. 9). The same rationale can be applied to asking questions about sexual orientation and gender identity. Do people of different sexual orientation have the same opportunities in education; employment; voting; home ownership? LGBT citizens have historically been discriminated against in the areas of employment; home ownership; adoption; and marriage (Swan, 2014). Should not the legal advancement of LGBT rights, such as marital relationships (Obergefell v. Hodges, 2015) be reflected in the census?

If “equal opportunity and changing American society” (U.S. Census Bureau, p. 9) are the standards for asking demographic questions in the census, the same logic can be applied to LGBT citizens. LGBT rights have expanded dramatically over the past 10 years (Naylor & Wyatt-Nichol, 2015; Wyatt-Nichol & Naylor, 2013, 2015) in the areas of marriage (Hollingsworth et al. v. Kirsten M. Perry, 2013; Obergefell v. Hodges, 2015; U.S. v. Windsor, 2013); military service (Don’t Ask, Don’t Tell Repeal Act of 2010: https://www.gpo.gov/fdsys/pkg/PLAW-111publ321/pdf/PLAW-111publ321.pdf; cf. Defense of Marriage Act of 1996: https://www.gpo.gov/fdsys/pkg/STATUTE-110/pdf/STATUTE-110-Pg2419.pdf); and sexual privacy (Lawrence v. Texas, 2003). American society has changed. The census should reflect these changes to capture an accurate count of all citizens.

POLICY RECOMMENDATIONS

In order to see a shift in LGBT policy outcomes (beyond symbolic inclusion), three key policy recommendations are made. The first recommendation is to adequately fund the 2020 census in order to capture an accurate count and location of people. The U.S. Commerce Secretary Wilbur Ross estimates that it will cost $15.6 billion to carry out the census, which is $3.3 billion more than previously estimated (Sherer & Barampour, 2017). The federal agency announced that the budget for the 2020 census would remain at the 2010 level ($12.3 billion) making it difficult to accurately count citizens (NBC News/Associated Press, 2017). The census is expensive to carry out, and it relies heavily on private contractors to implement the surveys. A lack of resources can have dire effects such as undercounting, which impacts political apportionment and allocation of federal resources.

The second recommendation is to add two LGBT demographics (sexual orientation and gender identity) to the U.S. Census. The recommendation is based on a federal data need. The rationale given by the U.S. Census Bureau for collecting demographic information is “knowing whether people of different genders [races, ages, relationships] have the same opportunities in education; employment; voting; and home ownership (U.S. Census Bureau, 2017, p. 9). This research argues that based on documented past discrimination against LGBT citizens (Cray, et al., 2013; Dolamore & Naylor, 2017; Johnson et al., 2017; Kaiser Family Foundation, 2018; Lick et al., 2013) there is a federal data need to know whether LGBT people have the same opportunities in education; employment; voting; and home ownership as heterosexual people. The number of LGBT citizens in the country should be reported on the U.S. Census Bureau Website, so the information is easily accessible. In addition, a breakdown of LGBT citizens should be included in census population tables on education; housing employment; voting; and home ownership. In addition, it is important to enforce antidiscrimination laws such as the Matthew Shephard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.

The third and final recommendation is to track the allocation of federal dollars to LGBT citizens to ensure equal opportunity in the areas of education; employment; voting; home ownership; and others. For example, in regard to federal allocation of funding, HUD allocates federal dollars to cities for LGBT homeless youth. This data (number of LGBT youth served and annual allocation of federal dollars) should be tracked and reported by the agency and made available to the public. In turn, this information should be reported to Congress. This would make the amount of federal dollars spent on LGBT citizens accessible. These three policy recommendations, if implemented, would change policy outcomes for LGBT citizens. They will count in the census; can monitor progress in terms of the amount of money allocated to LGBT services; and compare equal opportunities to minimize disparities between LGBT citizens and their heterosexual peers.

CONCLUSION

The decision to omit LGBT demographics in the census was a political decision. It served two purposes. It assisted President Trump in supporting his political base, and it served as a distraction from reinstating the citizenship question (Parlapiano, 2018).

Regarding policy, there is a clear federal data need to enforce laws, ensure equal opportunity, and prevent discrimination against LGBT citizens. This research deconstructed the U.S. Census Bureau’s decision to omit sexual orientation and gender identity as planned subjects in the upcoming census. The policy decision to exclude LGBT citizens was a political choice; not one based on empirical evidence. Similarly, the decision to add a citizenship question to the upcoming census is a political decision (Cerbin, 2018; Ross, 2018; U.S. Department of Commerce, 2018). In March 2018, the Secretary of Commerce announced that the 2020 Census will ask a citizenship question. This is the first time in 70 years that this question will be asked. Some view it as a political maneuver to undercount those who are afraid of being deported. In turn, this could hurt key Democratic states, which have a higher proportion of undocumented residents, which could change the political composition of the House of Representatives. As Abramsky (2017) reminds us, if you control the census, you control the money and the country.

To ensure an accurate count it is important to set aside adequate funding for implementing the census and to count all people across the nation. To achieve this goal LGBT demographic data should be included in the census and Congress should adequately fund the 2020 census. The federal agency announced that the budget for the 2020 census would remain at the 2010 level ($12.3 billion) making it difficult to accurately count citizens (NBC News/Associated Press, 2017). The decision to inadequately fund the implementation of the 2020 census was a political decision with far reaching consequences (Abramsky, 2017). Inaccurate counts can lead to underrepresentation of minorities and underrepresentation in the House of Representatives. Inadequate funding and the decision to not count LGBT citizens combined with the director’s resignation (Thompson, 2017) diminishes the agency’s legitimacy and more importantly it can weaken our democracy. In the case of who counts in America, politics trump equality. If we are to stamp the Great Seal of the United States in our history books, then all Americans, including LGBT people, should be counted in the upcoming 2020 U.S. Census. Otherwise, the American flag will continue to fly for only the privileged.