Updated Tuesday, September 5
During the Obama administration, at least four federal agencies, including the Justice Department, asked the Census Bureau to add questions about sexual orientation and gender identity to the American Community Survey, NPR has learned.
Besides the Justice Department, those agencies include the Department of Housing and Urban Development, the Centers for Medicare and Medicaid Services and the Environmental Protection Agency.
Still, in March, the bureau concluded there was "no federal data need" to ask about sexual orientation and gender identity on the largest survey in the U.S., which is conducted with about 3.5 million households each year and is used to help distribute more than $400 billion in federal funds.
Many LGBT rights groups say accurate national data about lesbian, gay, bisexual and transgender people are critical in making sure their needs are met.
In July, Sen. Tammy Baldwin, D-Wis., and Rep. Raúl Grijalva, D-Ariz., reintroduced bills in Congress that would require the American Community Survey, the decennial census and other federal surveys with demographic information to collect data on sexual orientation and gender identity. Under the LGBT Data Inclusion Act, this data would be kept confidential, and survey participants would not be required to provide it.
Rep. Jimmy Panetta, D-Calif., and Rep. Adam Schiff, D-Calif., have co-sponsored an amendment to a spending bill that would give the Census Bureau more funding the study the need for sexual orientation and gender identity questions.
The U.S. Census Bureau might have started asking Americans about sexual orientation and gender identity if the Department of Justice had not backed off its request for information about LGBT populations, former Census Bureau Director John Thompson told NPR's Code Switch
The Justice Department laid out the "legal authority supporting the necessity" for collecting that information in a spreadsheet of statutes attached to its letter to the Census Bureau dated Nov. 4, 2016.
NPR obtained copies of those documents through a Freedom of Information Act request to the Justice Department. They were first published online in May by the office of Sen. Tom Carper, D-Del.
Justice Department officials under the Trump administration contacted the Census Bureau about the "appropriateness" of certain sexual orientation and gender identity topics appearing on the upcoming American Community Survey, according to a letter sent in March by the Commerce Department that was published on Carper's website. The Commerce Department oversees the Census Bureau.
Less than a week after that letter was sent, the Justice Department wrote to the Commerce Department saying that it was "unable to reaffirm" its request for information about LGBT populations "because such a request requires thorough analysis and careful consideration."
After receiving that update from the Justice Department, the Census Bureau stopped evaluating whether to include sexual orientation and gender identity questions, according to Thompson, who resigned as Census Bureau director on June 30.
The Justice Department has not responded to NPR's requests for comment.
NPR has also submitted questions to the Census Bureau about its review process for new survey topics, but they have been left unanswered.
An explanation by the bureau is more than two months overdue to Sen. Carper and Democratic Sen. Kamala Harris of California – both members of the Senate Homeland Security and Governmental Affairs Committee, which has oversight of the Census Bureau. Carper and Harris sent a letter to Thompson while he was still leading the bureau and set June 19 as the deadline for a reply. In a recent written statement to NPR, Michael Cook, a spokesperson for the bureau, wrote, "The Senator's letter is still under review."
"I'm concerned by the lack of information about the Department of Justice's decision-making role and influence on topics considered in the American Community Survey and the 2020 Census," Carper said in a written statement in July. "It's troubling that the bureau has yet to provide a response to my letter with Sen. Harris, yet another example of this administration's blatant disregard for Congressional authority to conduct oversight."
As part of preparations for the upcoming decennial survey, agencies have the opportunity to submit requests for new topics of questions that will appear in the latest questionnaires for the American Community Survey. Those requests are then reviewed by a committee of officials from both the Census Bureau and the U.S. Office of Management and Budget, which sets the standards for how federal agencies collect data and ultimately decides whether new survey questions are added after public comment, according to a Census Bureau policy signed in 2006.
Thompson said the Census Bureau reviewed a letter from the Department of Housing and Urban Development, a copy of which NPR obtained through a FOIA request. "Valid, reliable, and nationally representative data on sexual orientation and gender identity are essential to HUD fulfilling its mission," wrote former HUD Secretary Julián Castro, who argued that LGBT data could help enforcement of the agency's "Equal Access to Housing" rule and the Fair Housing Act.
The Centers for Medicare and Medicaid Services submitted a request in order to improve care for LGBT beneficiaries of Medicare and Medicaid, says Cara James, director of the agency's Office of Minority Health.
The Environmental Protection Agency's Acting General Counsel Kevin Minoli says the EPA sent a request to help its equal employment opportunity efforts for people who identify as LGBT. Minoli adds that based on conversations with the Census Bureau, the agency learned that its request was not sufficient to support the addition of sexual orientation and gender identity questions because it requested data collected at the city or town level only.
It is unclear exactly what criteria the Census Bureau used to decide whether the requests meet a federal data need. "There's got to be strong programmatic need," Thompson told Code Switch, "and there's got to be a need for small-area data." The Census Bureau has defined "small areas" as either Census tracts or block groups, statistical groups of 8,000 people or fewer, according to a charter for a review committee for the American Community Survey.
However, the criteria listed in the charter for reviewing requests also included: "Federal law or regulation states that the small area or small population estimates must be provided." The LGBT population was cited as an example of a "small population" in a 2014 report by a Census Bureau working group.
Speaking to reporters in July at the National Press Club in Washington, D.C., Thompson emphasized that the Census Bureau's decision to not propose sexual orientation and gender identity questions came after "detailed work" by career staffers from the bureau and from the Commerce Department, who, he added, looked at the agencies' requests "very scientifically and very objectively."
While he did not go into detail about what criteria the staffers used, he said, "I know that they followed those criteria judiciously ... There was nothing in there about saying, 'Well, we don't want to put LGBT on the American Community Survey from the point of view of the Census Bureau.' "
When asked if requests for new American Community Survey questions from the Justice Department carry more legal weight than those from other agencies, Thompson replied, "No, they don't," before adding, "Every request is considered based on where it comes from."
Thompson wrote a blog post in March after a controversial revision was made to the Census Bureau's report of planned topics of questions for the 2020 census and the American Community Survey. The first version of the report published online listed "sexual orientation and gender identity" as "proposed," which Thompson wrote was "due to an error."
NPR has obtained a copy of a draft version of the report through a Freedom of Information Act request to the Census Bureau. The draft includes a full page about sexual orientation and gender identity as a proposed topic. That page was removed from the published report. The page provides an explanation about how the statistics could be used by the federal government:
"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."
Including this information in a draft version of the report is a sign that sexual orientation and gender identity were "technically vetted" by the Census Bureau, if not politically approved, according to Ken Prewitt, a former Census Bureau director who served during the Clinton administration.
"They couldn't put it in a report unless they felt that the data could be up to a certain quality level," Prewitt says. "They would already feel confident that if Congress said they want it that they would do it."
While Thompson cited requests from more than 75 members of Congress in his blog post about the bureau's decision to not propose sexual orientation and gender identity as a new survey topic, he did not mention the requests from multiple federal agencies that also wanted the collection of LGBT data. "It didn't seem necessary to convey the intended message," Thompson explained in an email.
Some LGBT advocates have raised concerns that the Trump administration is trying to stop federal agencies from collecting data on the LGBT community.
Thompson says that's not true.
"I can honestly say that the White House never contacted the Census Bureau about that at all," Thompson said, referring to the Trump administration. "It was all between the Census Bureau and the different agencies."