Imagine a scenario in which the Trump administration called for all Americans to register their sexual preferences with the government. Gay, straight, bi, trans, and every other permutation of sexual desire and identity would be compiled and cross-referenced by government officials. Lying or failing to answer the question would be a violation of federal law, subject to fines. The government would know precisely what is going on in your bedroom, and in the bedrooms of your fellow citizens across the nation.
That sounds like a lefty fever dream, a dystopian vision of Trumpian persecution.
Instead, it is the policy some LGBT advocates are clamoring for and were disappointed not to have received last week. Rather than celebrating the protection of their privacy, the National LGBTQ Taskforce released a press statement condemning the administration’s decision to continue the existing policy of minding their own business.
Do You Really Want Government to Collect This Data?
“We call on President Trump and his Administration to begin collecting sexual orientation and gender identity data on the American Community Survey as soon as possible,” Criminal and Economic Justice Project Director Meghan Maury was quoted as saying, “and urge Congress to conduct oversight hearings to reveal why the Administration made the last-minute decision not to collect data on LGBTQ people.” The decision not to compile a government database of gay people was “another step to deny LGBTQ people freedom, justice, and equity,” she went on to say.
It is a strange sort of freedom, justice, and equality that requires a bureaucrat’s catalog to realize it. Even more so when it requires you, under penalty of law, to exercise it. The census is not optional, and a question about sexual orientation would mandate that people disclose their sexual identity to the United States government—even if they have not disclosed that to anyone else.
For an organization that clearly dislikes and distrusts Donald Trump, the National LGBTQ Taskforce is certainly anxious to give him the personal information of millions of people. Outing yourself, in their view, is not just encouraged: it is required.
As The Government Grows, So Too The Census
“The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”
From this one sentence in the Constitution, the census has grown into a massive data-collecting operation. That sentence makes the original purpose of the census clear, even without context. The Constitution creates a House of Representatives that is apportioned by population. The only way to determine that apportionment is to know how many people there are in each state. The only way to do that was a census.
Censuses had a bad reputation in the Old Testament, but they were fairly uncontroversial in early America. Perhaps that is because the census was only minimally intrusive in the citizens’ lives back then. The 1790 census did not even write down everyone’s name, only the head of household. The enumeration was simple: how many people in the household, broken down by age bracket, race, and whether the person was free or enslaved. The slavery question was necessary because of the Constitution’s three-fifths clause, which affected how many representatives were apportioned to each state, but the race and sex questions were superfluous. This was a low-tech census even for its day: until 1830, census takers did not even have standard forms to fill out, so they listed the people in his district however they chose, so long as it answered the basic questions.
As time went on, the census asked more and more of people. By 1850, they started listing everyone by name (other than slaves) and asking about national origin. More family information was added each year. Changing demographics and the American obsession with race also meant that the original categories of white, black, and other soon expanded. In 1890, the high tide of scientific racism, the choices included white, black, mulatto, quadroon, octoroon, Chinese, Japanese, and Indian. The government didn’t just want to know your race; for mixed race people, they want to know the exact percentage of African ancestry you had.
Even before emancipation racial questions were not strictly necessary, but afterward they were completely unneeded. Likewise the questions about citizenship status, marital status, household relationships, and any number of other details. So why include them? One part of the answer must be that the government always wants to know more about the people within its borders. The reasons for this can be good or evil but any government, whether it wants to help its citizens or oppress them, must first know about them.
That sort of information was not readily available in the nation’s early days, which meant the government had to do it itself. That has been a boon to historians and genealogists, who find information in those censuses—now digitized—that they could not otherwise find without sifting through local city and church records that are often inaccessible, when they even still exist.
Our Bureaucracy Already Overflows With Personal Data
That dearth of data no longer prevails today. In modern America, information about the population is everywhere. Businesses want demographic information, and are willing to pay for it. Social scientists will do the same. Genealogists of the future will not need to comb the 2020 Census for clues about their ancestors—evidence of our existence is omnipresent. Not a day goes by without a news story about some new survey or poll. Our nation’s bureaucracy is overflowing with personal information on us, and private sources are full of it, as well.
The census mostly duplicates these information sources. For some, that means we should not bother; for others, it suggests that there is no harm in it. The census itself is undoubtedly constitutional. Indeed, the Constitution requires it, but that only applies to the actual enumeration. The decennial reapportionment of the House requires an actual count of Americans, but it does not require anything beyond that.
What About Personal Privacy?
The problem with including personal information in the census is two-fold. First is the problem of coercion. Pollsters have compiled terabytes of data on the American people, but all of it was gathered through agreement of the parties. No one forces you to answer a poll or survey, or to be truthful if you choose to do so. That can be a problem for survey teams, but it is a benefit to the people. Your right to be left alone is preserved. You do not commit a crime when you hang up on a pollster.
An even larger problem is that, once compiled, the database of personal information represents a powerful tool for a government to use against its populace. For all the Left’s furor during the last election campaign over a “Muslim registry,” the same progressive activists are falling over themselves to give the government a sexuality registry, in addition to the racial registry they already possess. If you do not trust the government (or this administration specifically,) why give them another tool to aid in your persecution?
Most of the world’s nations do not compile the detailed census that the United States does. Even among first-world nations, demanding racial identity data from citizens is not universal. A 2001 Brookings Institution report explains the policy in France, which is very different from our own:
France has intentionally avoided implementing “race-conscious” policies. There are no public policies in France that target benefits or confer recognition on groups defined as races. For many Frenchmen, the very term race sends a shiver running down their spines, since it tends to recall the atrocities of Nazi Germany and the complicity of France’s Vichy regime in deporting Jews to concentration camps. Race is such a taboo term that a 1978 law specifically banned the collection and computerized storage of race-based data without the express consent of the interviewees or a waiver by a state committee. France therefore collects no census or other data on the race (or ethnicity) of its citizens.
We Should Be Wary Of Government Data Collection
That some other country differs from us is not reason alone to make a policy change, but it does show that a similarly advanced society can function without doing things exactly the way we do them. We should think hard about reducing the amount of personal, private data we are compelled to divulge to the government. As Justice John Paul Stevens wrote in the 1977 case of Whalen v. Roe, “[w]e are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files.”
Americans should be free to disclose their private data, but they should never be compelled to disclose it. If we care about our privacy, we should at the very least keep our sexual identities off the census forms. We would do well to cut a bit more than that, and to tell the government to mind its own business.