DOJ requested census include ‘sexual orientation and gender identity’ data
Breccan F. Thies
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The Department of Justice sent a letter to the U.S. Census Bureau requesting it include questions regarding “sexual orientation and gender identity” in its national demographics collection, according to a Freedom of Information Act request.
The inclusion of such data sets in the American Community Survey has been talked about since at least the Obama administration, when the Justice Department was joined by the Department of Housing and Urban Development, Centers for Medicare and Medicaid Services, and the Environmental Protection Agency asking for similar data to be included.
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On Dec. 9, 2022, Justice again stressed the “need” for the data, saying it would “support the Department’s work coordinating and enforcing federal laws that protect individuals from discrimination on the basis of sexual orientation and gender identity,” the letter, obtained by NPR, states.
The letter, from Assistant Attorney General for the Civil Rights Division Kristen Clarke, says having the data could allow prosecutors to meet the “substantive legal standard” for proof of discrimination because it could be “supported by evidence of its impact on LGBTQI+ individuals.”
Clarke heavily cited Bostock v. Clayton County, the Supreme Court decision that read sexual orientation and gender identity into the meaning of the 1964 Civil Rights Act, saying the decision authored by Justice Neil Gorsuch reoriented many federal agencies’ interpretation of the Civil Rights Act.
Moreover, the letter states the data would enable DOJ to “combat violations of the rights of incarcerated LGBTQI+” inmates, though it is unclear if that means, as has been reported, male inmates could report being transgender and be sent to a women’s prison.
Justice’s letter, and the potential inclusion of the questions on the ACS, would follow on a Biden administration push to include similar data on collections from several departments. The Department of Education’s National Center for Education Statistics collects the data to give respondents the “opportunity” to be their “whole self” and “be seen and heard by researchers and policymakers.”
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The 2020 census did include an option for same-sex unions to identify themselves but did not have an option for gender identity and sexual orientation.
The Justice Department did not return a request for comment from the Washington Examiner.