Issues to Watch

Can we be inclusive and not discriminate? What will be the effects of the proposed census questions?


*Elizabeth Strunk

Another ten years have passed, and it is that time again.  The constitutionally required decennial census is upon us.  U.S. Const. art. I, § 2, cl. 3.  The Secretary of Commerce has been given broad discretion by Congress to carry out the decennial census through “the use of sample procedures and special surveys.”  13 U.S.C.A. § 141(a) (Westlaw through Pub. L. 115-223).  The original purpose of the census was for reapportionment; however, now “the census data is used for a myriad of other purposes.”  13 U.S.C.A. § 141(b) (Westlaw through Pub. L. 115-223); Wisconsin v. City of New York, 517 U.S. 1, 5–6 (1996).  Generally, questions on the census are justified because it is “necessary and proper” to collect data for Congress to provide government funding and programs to the communities most in need.  U.S. Const. art. I, § 8, cl. 18; Morales v. Daley, 116 F. Supp. 2d 801, 810 (S.D. Tex. 2000).

In March, the Secretary of Commerce determined the proposed questions for the 2020 census.  Hansi Lo Wang, 2020 Census Will Ask About Same-Sex Relationships, National Public Radio (Mar. 30, 2018, 05:02 AM), https://www.npr.org/2018/03/30/598192154/2020-census-will-ask-about-same-sex-relationships [hereinafter 2020 Census]; see 13 U.S.C.A. § 141(f)(2) (Westlaw through Pub. L. 115-223).  A question regarding American citizenship will be on the census for the first time since 1950.  D’Vera Cohn, What to Know About the Citizenship Question the Census Bureau is Planning to Ask in 2020, Pew Research (Mar. 30, 2018), http://www.pewresearch.org/fact-tank/2018/03/30/what-to-know-about-the-citizenship-question-the-census-bureau-is-planning-to-ask-in-2020/.  The citizenship question will bluntly ask, “Is this a person of the United States[]” and the fifth answer available will read “No, not a U.S. citizen.”  Id.  Also, couples will finally be able to designate if the person they are living with is a partner of the same sex or the opposite sex.  2020 Census, supra.  The personal relation question will have newly phrased answers such as “opposite-sex husband/wife/spouse or opposite-sex unmarried partner,” as well as “same-sex husband/wife/spouse or same-sex unmarried partner.”  Id.  While the LGBTQ community is praising this new addition, there is still plenty of room for improvement.  Hansi Lo Wang, Senate Bill To Require Sexual Orientation, Gender Identity Data By 2030 Census, National Public Radio (July 31, 2018, 12:11 PM), https://www.npr.org/2018/07/31/634243854/senate-bill-to-require-sexual-orientation-gender-identity-data-by-2030-census [hereinafter Senate Bill].  This updated phrasing does not include “LGBTQ people who are not in relationships as well as people whose gender identities do not align with the sex assigned to them at birth.”  Id.

On July 31, 2018, Senators Kamala D. Harris (D-CA) and Tom Carper (D-DE) introduced the Census Equality Act, which will require questions on the census regarding sexual orientation and gender identity.  Census Equality Act, S. 3314, 115th Cong. (2018).  It is estimated that there are 10 million Americans who identify as LGBTQ and need access to Medicaid, Section 8 housing, and food aid through the Supplemental Nutritional Assistance Program (SNAP).  Lauren Holter, How The Census Equality Act Aims To Make Data More LGBTQ Inclusive, Bustle, https://www.bustle.com/p/how-the-census-equality-act-aims-to-make-data-more-lgbtq-inclusive-9951197 (last visited Sept. 17, 2018); Senate Bill, supra.  The Williams Institute reported in 2013 that income levels of the LGBTQ community are “more likely than those of heterosexual people to fall below the federal poverty line.”  Senate Bill, supra; see M.V. Lee Badgett, Laura E. Durso & Alyssa Schneebaum, New Patterns of Poverty in the Lesbian, Gay, and Bisexual Community, The Williams Inst. (June 2013), https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGB-Poverty-Update-Jun-2013.pdf.  The Census Equality Act aims to resolve the discrepancy so that this previously undercounted community is provided with adequate government resources.  Harris, Carper Introduce Legislation to Ensure LGBTQ Community Represented in Census and ACS, Kamala D. Harris U.S. Senator for California (July 31, 2018), https://www.harris.senate.gov/news/press-releases/harris-carper-introduce-legislation-to-ensure-lgbtq-community-represented-in-census-and-acs.  The sexual orientation and gender identity question would help address the current underrepresentation and provide the government with “better tools to enforce civil rights protections for a community that is too often discriminated against.”  Id.  Agencies such as the Department of Housing and Urban Development and the Justice Department have requested adding sexual orientation and gender identity to the American Community Survey to better fulfill their mission and police unlawful discrimination.  Senate Bill, supra.  However, the Census Bureau decided to not move forward with the requests because the Bureau determined there is no need for the data.  Id.

In the midst of state legislatures being flooded with anti-transgender bills, the primary concern with the Census Equality Act is that it will promote further discrimination to the LGBTQ community.  Legislation Affecting LGBT Rights Across the Country, Am. Civil Liberties Union, https://www.aclu.org/legislation-affecting-lgbt-rights-across-country (last visited Sep. 14, 2018); Senate Bill, supra.  The Census Bureau can release data about neighborhood demographics as soon as seventy-two hours after collection.  Senate Bill, supra.  Although the Census Bureau has privacy standards for information disclosed, privacy experts are concerned about the lack of state regulations concerning workplace discrimination.  Id. A minority of states currently have laws that protect against workplace discrimination based on sexual orientation or gender identification.  Roberts v. United Parcel Serv., Inc., 115 F. Supp. 3d 344, 366–67 (E.D.N.Y. 2015).  Therefore, a majority of the LGBTQ community is unprotected and without legal options in the face of workplace discrimination, especially in the southern and midwestern regions of the country.  Id.

There has been litigation in recent decades concerning differential undercounting and the use of adjusted data when making allotments to federal and state funds.  See generally City of Los Angeles v. U.S. Dep’t of Commerce, 307 F.3d 859, 864 (9th Cir. 2002) (discussing the use of statistic methodologies and techniques to adjust census results); Wisconsin, 517 U.S. at 4.  However, more relevant to current census discussions is Morales v. Daley, 116 F. Supp. 2d 801 (S.D. Tex. 2000).  In Morales, the plaintiffs challenged the constitutionality of the 2000 census questions by arguing they violated the First and Fourth Amendments.  Id. at 815, 817.  The court determined the questions did not violate First Amendment rights because the information collected was confidential and not publicly disseminated.  Id. at 816.  Further, the Fourth Amendment argument was characterized as frivolous by the court because there was neither entrance upon nor interference with any property interests.  Id. at 820.  The court concluded by noting there was statutory assurance that the information collected would remain confidential and there was a substantial need for the information to further government interests.  Id.

Currently, there is a case before the U.S. District Court for the Southern District of New York concerning the citizenship question.  New York v. U.S. Dep’t. of Commerce, No. 18–CV–5025, 2018 WL 3581350 (S.D.N.Y. July 26, 2018).  Plaintiffs contend the citizenship question violates the Constitution as well as the Administrative Procedure Act.  Id. at *2.  In an opinion from a motion to dismiss by the defendants, the court concludes the plaintiffs have jurisdiction as well as standing for their claim.  Id.  Further, the court discusses the permissibility of the citizenship question because broad discretion is given to Congress and therefore the Secretary of Commerce.  Id.

“The spirit of the census is that no one should go uncounted and no one should be invisible.”  Harris, supra.  If the Census Equality Act passes legislation, it will require a sexual orientation and gender identity question on the 2030 census.  Senate Bill, supra.  The bill will also require both to be included on the 2020 American Community Survey.  Id.  However, considering recent legislation being introduced on the state level does not support individuals that identify as transgender, it seems unlikely that the Census Equality Act will pass in Congress.  See State Action Center, Transequality.org, https://transequality.org/action-center (last visited Sept. 17, 2018).  Federal lawmakers may soon be forced to weigh the threat of sexual orientation and gender identity discrimination against the reality that millions of Americans are underrepresented and seeking government resources.  See Holter, supra.

*Elizabeth Strunk is a second-year day student at the University of Baltimore School of Law, where she is a staff editor for Law Review. Elizabeth is also a member of the Royal Graham Shannonhouse III Honor Society. Currently, Elizabeth is externing for the Hon. A. David Copperthite of the U.S. District Court for the District of Maryland.

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