//  4/13/17  //  Commentary

The Information Wars Series: Law operates as it is applied to a set of facts.  Policy is likewise made in response to or anticipation of a set of facts.  While facts are often reasonably in dispute, good policy and sound application of the law require a willingness to engage with facts.  Indeed, fruitful debate about legal principles and policy judgments often emerges only when we can agree—or stipulate to—the facts.  Yet the Trump administration has attempted to subvert or conceal data in a range of policy areas: from police violence, to LGBTQ rights and protections, to climate change.  In this series, we analyze the spheres in which the administration is undermining essential data, the prerequisite to sound—and democratically accountable—policymaking and to the protection of fundamental rights.

 

The Trump administration has enacted a variety of policies of denial—steps to conceal, subvert, or manipulate information that is necessary to good policymaking and to safeguarding constitutional rights.  For example, the administration retracted a proposal to add LGBTQ identification to the U.S. census. Long advocated by LGBTQ rights groups, the addition would have, among other things, given insight into the extent of discrimination against LGBTQ individuals.   The administration has also signaled its plans to roll back federal-led investigations into police violence, similarly undercutting efforts to understand and identify the extent of racialized police violence.   These policies are nothing less than a war on information—the administration’s first efforts to deny the existence of problems by disappearing the facts. In this post, we’ll cover the administration’s efforts to ensure LGBTQ individuals remain invisible in the census.  In future posts, we’ll cover the administration’s war on information in the areas of police violence and immigration.

The decennial U.S. census is a tool for representative democracy.  It is also mandated by the Constitution: Article I, § 2 obligates the government to tally up persons every ten years and apportion representation in the House of Representatives according to the population in every state.  As the U.S. Census Bureau explains, the census and apportionment scheme “marked a turning point in world history.”  Whereas previous censuses operated as a tool of government control over subjects—to tax, conscript, or confiscate property—the Founders converted the census into “a tool of political empowerment for the governed over their government.”

The census facilitates political empowerment in a variety of ways.  Most obviously, the census is used to apportion representation.  But it does much more—it informs national political, economic, and social decisions about how to allocate $400 billion in annual federal funding. Census data is also critical to advocacy.  Among the examples highlighted by the Census Bureau is a Minnesota neighborhood that used census data to challenge a proposed energy facility based on the particular harm it would bring to the neighborhood’s high percentage of children and elderly adults.  More broadly, census data translates into political power: Minority groups can get representatives’ attention by highlighting just how many constituents the group accounts for. In a literal sense, information is (political) power. 

The census is also bound up with the Constitution’s promise of equality, which the census’s place in the Constitution underscores. The census appears just after the apportionment formula in Article I.  Until the Civil War and Reconstruction, Article I assigned representation to states “according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons . . . three fifths of all other Persons.” The so-called three-fifths clause was a compromise to reduce political power of slave-owning southerners (who would have preferred slaves be counted as whole persons to gain a higher share of congressmen).  But the clause symbolizes and embodies the denial of full personhood to slaves.

The Civil War and subsequent amendments did more than make minor tweaks to that representation formula.  The Fourteenth Amendment added the Equal Protection Clause, which would later be read back into the Fifth Amendment to require both federal and state government to provide equal protection of the laws. And the census is a crucial mechanism to enforce that constitutional equality principle.  As the Census Bureau notes, it collects information on sex because “laws promoting equal employment opportunity for women require census data on sex.”

Though it isn’t clear that the latest proposal would have translated into LGBTQ questions on the next census in 2020, experts have suggested that the Bureau may have been moving in that direction, and they worry that the Trump administration could halt that progress.  Adding to that suspicion is the fact that the administration has removed questions about LGBTQ identification from two HHS-sponsored surveys: the National Survey of Older Americans Act Participants and the Annual Program Performance Report for Centers for Independent Living.

The administration’s moves should be understood for what they are—a harm to the LGBTQ community.  Think of the “It Gets Better” campaign and project. The campaign involved people who identify as LGBTQ sharing their stories and telling other LGBTQ individuals that “it gets better.”  Why does this help? Well, among other things, it provides LGBTQ individuals a sense of community (even a remote one), and tells them that they are part of a group that includes a lot of people, including people who are role models like them.

The Trump administration’s apparent plans for the census and HHS surveys do the opposite.  By omitting figures about the number of LGBTQ individuals in the United States, the census denies a way for LGBTQ individuals to understand they are not alone. More than that, however, the lack of transparent information makes it harder to understand the extent of discrimination against LGBTQ individuals.  We know there is some discrimination (okay a lot—see the recent streak of bathroom bills).  But it is harder to identify disparities in leadership positions, employment outcomes, or academic success if there is no baseline against which to judge those statistics.  That is, if we don’t know how many people identify as LGBTQ, how can we know whether LGBTQ individuals are proportionally represented in leadership positions?   In the Census Bureau’s words, “laws promoting equal employment opportunity . . . require census data.”

Suppressing information about LGBTQ people is, at its most extreme, also an outright denial of their existence. Anti-LGBTQ governments use the tactic of denial as they oppress and target LGBTQ populations. Alarming reports emerged last week that the Chechen government has been kidnapping and murdering gay men.  But in response to the reports, a government spokesperson claimed, “You cannot arrest or repress people who just don’t exist in the republic,” adding that if gay people did exist in Chechnya, their own families “would send them somewhere from which there is no returning.”

Information suppression is an effort to keep LGBTQ people closeted, out of sight from a society that might over time come to see their humanity and accept their personhood and rights. Openness is itself a pro-equality and pro-LGBTQ position.  Advocates in some of the most anti-LGBTQ countries often see their job as simply demonstrating to society that LGBTQ people exist and are, in fact, just people. Photographer Eric Gyamfi, for instance, documented LGBTQ people in Ghana—a country that criminalizes same-sex sexual activity—to show “that queer people are people first and that they cut across all categories of humanness.”  As the New York Times observed, “[w]hen queerness is seen as the very antithesis of normal, normalcy is the only antidote.” 

When the Trump administration removes LGBTQ questions from HHS surveys or halts the progress toward including LGBTQ identification on the U.S. census, it undermines the openness that has been achieved thus far. It exacts a particular harm on a community that was forced to remain closeted for so much of our history, and impedes efforts to combat LGBTQ discrimination.

We have seen the Trump administration take on facts in different ways.  Members of the administration cast falsehoods as “alternative facts,” and insist that flat-out lies are the truth, “period.”  Now the administration has seized the federal government’s capacity for information gathering, and is using it to deny the existence of inconvenient facts. The Trump administration may not “officially” be at war with Syria, but it is plainly at war with information.


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