Updated 11:57 p.m. ET
Plans to add questions about sexual orientation and gender identity to the largest survey in the U.S. — the Census Bureau's American Community Survey — stalled after President Trump entered the White House last year.
The newly released testimony of an official at the Commerce Department, which oversees the Census Bureau, points to a possible reason. Earl Comstock, who heads the department's Office of Policy and Strategic Planning, was recently deposed for the lawsuits over the 2020 census citizenship question.
Asked by Matthew Colangelo, an attorney for the plaintiffs, if sexual orientation and gender identity questions were not included "because you came to the policy position you did not want to ask" them, Comstock replied: "That was the administration's conclusion, yes."
A transcript excerpt of Comstock's Aug. 30 deposition was filed Wednesday with Manhattan federal court by the plaintiffs' attorneys from the New York state attorney general's office, the American Civil Liberties Union and the law firm Arnold & Porter.
In a written statement, a spokesperson for the Commerce Department, Kevin Manning, says Comstock was referring to a March 2017 letter written by Justice Department official Arthur Gary to the Commerce Department in the early months of the Trump administration.
As NPR has reported, the Justice Department and three other federal agencies during the Obama administration submitted requests for sexual orientation and gender identity questions to be added to the American Community Survey.
In his March 2017 letter, however, Gary informed the Commerce Department that the Justice Department decided to stand down on the agency's request, saying that it "requires thorough analysis and careful consideration." The department did not immediately respond to an inquiry about the status of its analysis.
As a result of the Justice Department's decision, the Census Bureau stopped evaluating sexual orientation and gender as question topics for the American Community Survey. The bureau ultimately announced that there was "no federal data need" to add the questions.
Still, in a June 2016 letter to the Census Bureau, then-Housing and Urban Development Secretary Julián Castro wrote, "Valid, reliable, and nationally representative data on sexual orientation and gender identity are essential to HUD fulfilling its mission." The Justice Department noted in its request that such data could help the agency enforce the Civil Rights Act's protections against employment discrimination.
The other requests came from the Centers for Medicare and Medicaid Services and the Environmental Protection Agency.
A "sensitive" topic
During his deposition, Comstock appears to have mistaken that the agency requests were for the 2020 census and not the American Community Survey, which the Census Bureau also conducts.
"The prior administration had wanted to add ... to the decennial census a question on sexual orientation and gender identity," he testified, according to the transcript excerpt. "So for all the people that are raising an uproar right now about the addition of this [citizenship] question, apparently there was no concern about adding such a question on another sensitive topic last year."
Justice Department officials under the Trump administration, however, did contact the Census Bureau about the "appropriateness" of sexual orientation and gender identity topics appearing on the upcoming American Community Survey, according to a March 2017 letter sent by the Commerce Department that was published on the website of Sen. Tom Carper, a Democrat from Delaware.
A spokesperson for the Census Bureau, Michael Cook, referred NPR's inquiries to the Commerce Department, which did not immediately respond to a request for comment.
The White House also did not immediately respond to an inquiry.
"Inadvertently listed"
Asked by email in March if any Census Bureau officials were concerned the Trump administration would not support the requests to add sexual orientation and gender identity questions to the American Community Survey, Cook replied: "N/A." Asked to clarify, he later wrote back, "It should have read as NO."
While the 2020 census is set to include new relationship categories differentiating between "same-sex" and "opposite-sex" couples, the Census Bureau so far has not directly asked about sexual orientation or gender identity in its surveys.
A group of Senate Democrats introduced a bill in July that would require such questions on census forms for every U.S. household by 2030 and by 2020, on the American Community Survey. About one in 38 households every year are required by federal law to answer that survey.
"It is shameful that the Trump Administration is refusing to expand data collections efforts on sexual orientation and gender identity, purely to promote a partisan agenda," said Sen. Kamala Harris of California, one of the co-sponsors of the bill, in a written statement. "Congress should correct this by passing the Census Equality Act."
Under Harris' bill, the Census Bureau would not be allowed to share any sexual orientation or gender identity information identifying individuals until 72 years after it's collected, as it is for other kinds of census data. Still, anonymized data about specific demographic groups at levels as detailed as specific neighborhoods can be released by the bureau.
Some data privacy experts have raised concerns that the data could be used against LGBTQ people. They point out that many states do not have laws banning workplace discrimination based on sexual orientation or gender identity.
Still, advocates for the collection of sexual orientation and gender identity data emphasize that more information could benefit LGBTQ people.
"If you are not counted, you don't count," said David Stacy, the Human Rights Campaign's government affairs director, in a written statement. "Census data is critical to understand people's needs, understand their demographics, and determine where government resources are directed. Excluding data about LGBTQ people and their families will negatively impact LGBTQ people."
In March 2017, the issue made a brief appearance in the appendix of a Census Bureau report announcing the proposed question topics for the 2020 census and an update to the American Community Survey. But hours after the report was posted on the bureau's website, the reference to "Sexual Orientation and Gender Identity" as "Proposed" was removed from the second-to-last page.
The bureau said that it was " inadvertently listed." But in a draft version of the report NPR obtained through a Freedom of Information Act request, a full page dedicated to the topic that was missing from the final version noted:
"Sexual orientation and gender identity questions are being evaluated and may be proposed to aid in planning and funding government programs and in evaluating other government programs and policies to ensure they fairly and equitably serve the needs of all people. These statistics could also be used to enforce laws, regulations, and policies against discrimination in society."
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