BILL ANALYSIS
SJR 28
Page 1
Date of Hearing: August 10, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SJR 28 (Kehoe) - As Introduced: March 25, 2010
As Proposed to Be Amended
SENATE VOTE : 22-9
SUBJECT : THE 2020 CENSUS: SEXUAL ORIENTATION DATA
KEY ISSUE : SHOULD THE LEGISLATURE URGE CONGRESS AND THE
PRESIDENT TO ENACT LEGISLATION, AND THE SECRETARY OF COMMERCE TO
ADOPT CENSUS BUREAU POLICIES, TO INCLUDE THE COLLECTION OF DATA
ON SEXUAL ORIENTATION AND GENDER IDENTITY AS PART OF THE 2020
U.S. CENSUS?
FISCAL EFFECT : As currently in print this measure is keyed
non-fiscal.
SYNOPSIS
This measure would request the Legislature to urge Congress and
the President of the United States to enact legislation to have
the 2020 Census include data on sexual orientation and gender
identity. In addition, this resolution calls upon the President
to encourage, and the Secretary of Commerce to adopt, policies
by the Census Bureau to include the collection of data on sexual
orientation and gender identity in the 2020 U.S. Census and
future surveys and censuses conducted by the Bureau. Generally
speaking, U.S. Census data allow the unmet needs of certain
populations to be identified and the allocation of federal and
private sector funds to address those needs. According to the
author, this resolution addresses the problem that arises
because the U.S. Census Bureau currently does not directly count
lesbian, gay, bisexual and transgender (LGBT) persons when it
conducts the U.S. Census. As a result, the data gathered
through the Census process do not provide a mechanism that
allows California to access appropriate resources for the LGBT
community. Equality California, the sponsor of this resolution,
and other supporters contend that if the Census Bureau were to
include questions to ascertain sexual orientation and gender
identity data in the next Census in 2020, the data gathered
could be used to appropriately provide resources and services to
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the LGBT community-- just as the Census now allows for other
communities. This resolution has no known opposition and passed
off the Senate floor by a 22-9 vote.
SUMMARY : Urges the federal government to enact legislation, or
alternatively, to adopt Census Bureau policies, to include the
collection of data on sexual orientation and gender identity as
part of the 2020 U.S. Census and future census surveys.
Specifically, this measure :
1)States that the federal government uses data collected from
the census for the allocation of federal funds, including, but
not limited to, funding for hospitals, job training centers,
schools, public works projects, and emergency services, and
that statistics based on data collected from the census are
used for a myriad of public benefit purposes, including, but
not limited to, quality of life issues and advocacy.
2)States that the number of representatives allocated to a state
to serve in the United States House of Representatives is
based on data collected from the Census.
3)Asserts that currently available census data is principally
related to same-sex couples, and the 2010 Census will be the
first census to release a count of both same-sex spouses and
same-sex unmarried partners.
4)States that, according to data from the 2000 Census, there are
approximately 5.87 million people in the United States who are
gay or lesbian.
5)Asserts that the census discriminates against the lesbian,
gay, bisexual, and transgender community because it does not
currently include questions regarding sexual orientation and
does not have policies in place that identify and count
members of this community.
6)Asserts that the census discriminates against transgender
respondents in particular by failing to take into account
gender identity.
7)States that same-sex couples are raising children throughout
the country with significantly less economic resources than
heterosexual married couples, and that same-sex couple
families are significantly more likely to be classified as
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poor than are heterosexual married families.
8)Asserts that if the census were to count members of the
lesbian, gay, bisexual, and transgender community, the data
could be used to appropriately allocate resources and services
to this community just as it does other communities.
9)Urges Congress and the President of the United States to enact
legislation to have the 2020 Census gather data on sexual
orientation and gender identity.
10)Calls upon the President to encourage, and the Secretary of
Commerce to adopt, policies to include the collection of data
on sexual orientation and gender identity in the 2020 U.S.
Census and future surveys and censuses conducted by the Census
Bureau.
EXISTING LAW :
1)Requires the federal government to conduct a Census every ten
years of all the people living in the United States. (Article
I, Section 2 of the U.S. Constitution.)
2)Requires the Secretary of Commerce, in the year 1980 and every
10 years thereafter, to take a decennial census of population
as of the first day of April of such year, in such form and
content as he may determine, including the use of sampling
procedures and special surveys. Authorizes the Secretary, in
connection with any such census, to obtain such other census
information as necessary. (13 U.S.C. 141(a).)
3)Declares that the "Representatives shall be apportioned among
the several States according to their respective numbers,
counting the whole number of persons in each State," in effect
providing that the number of Representatives allocated to each
state to serve in the United States House of Representatives
is based on the Census population count. (Section 2 of the
14th Amendment to the U.S. Constitution.)
4)Requires the tabulation of total population by States pursuant
to a U.S. Census as required for the apportionment of
Representatives in Congress among the several States to be
completed within 9 months after the census date and reported
by the Secretary of Commerce to the President. (13 U.S.C.
141(b).)
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5)Provides that the Secretary of Commerce shall prepare
questionnaires, and shall determine the inquiries, and the
number, form, and subdivisions thereof, for the statistics,
surveys, and censuses provided for in Title 13 of the United
States Code (governing the U.S. Census.)
(13 U.S.C. 5.)
6)Requires the Secretary of Commerce, in intervening years
between decennial Censuses and to the extent feasible, to
continue to collect and publish current data about total
population and population characteristics, as provided. (13
U.S.C. 181(a).)
COMMENTS : This resolution, sponsored by Equality California,
urges Congress and the President of the United States to enact
legislation to have the 2020 Census include data on sexual
orientation and gender identity. In addition, this resolution
calls upon the President to encourage, and the Secretary of
Commerce to adopt, policies by the Census Bureau to include the
collection of data on sexual orientation and gender identity in
the 2020 U.S. Census and future surveys and censuses conducted
by the Bureau.
According to the author, this resolution addresses the problem
that arises because the U.S. Census Bureau currently does not
directly count lesbian, gay, bisexual and transgender (LGBT)
persons in the U.S. Census. As a result, the data gathered
through the Census process do not provide a mechanism that
allows California to access appropriate resources for the LGBT
community. In support of the measure, the author writes:
Most people know that the Census helps determine the
number of seats allocated to states in the US House of
Representatives, but the Census is also a mechanism
used to allocate a variety of federal funds. For
example, Census data affects allocation of federal
funds for hospitals, job training centers, schools,
public works projects, and emergency services. If the
United States Census were to count the lesbian, gay,
bisexual and transgender community in its Census, the
data gathered could be used to appropriately provide
resources and services to this community just as it
does for other communities.
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[This resolution] would put California on the record
in support for the inclusion of sexual orientation and
gender identity questions in the United States 2020
Census.
Background on the U.S. Census. Section 2 of Article I of the
U.S. Constitution requires a national census to be conducted
every 10 years, and a Census has been carried out every ten
years since the very first one in 1790 (which counted the U.S.
population at that time at precisely 3,929,214 persons.) The
Bureau of the Census is an agency within, and under the
jurisdiction of, the Department of Commerce, currently headed by
Secretary Gary Locke. The controlling law for the U.S. Census
is Title 13 of the United States Code, which requires a
decennial census in every year divisible by ten (i.e. 1980,
1990, 2000, etc.) that, most importantly, is used to apportion
members of the U.S. House of Representatives to each of the
states, pursuant to Section 2 of the 14th Amendment. In the
intervening years between decennial Censuses, Title 13 requires
the Census Bureau to continue to collect current data about
total population and population characteristics of U.S.
residents, and to publish and disseminate this information for
use by Congress, as well as state and local governments.
Census data are used to identify unmet needs in certain
populations . To illustrate the point that Census data actually
helps identify unmet needs in a community, this resolution
includes research findings from a 2003 study conducted by the
Williams Institute (UCLA School of Law) indicating that, based
on available U.S. Census data: (1) same-sex couples raising
children have significantly fewer economic resources to provide
for their families than their heterosexual married counterparts;
and (2) same-sex couple families (as defined) are significantly
more likely to be classified as poor than are heterosexual
married families. If true, this Census data suggests a
discrepancy in the economic status of couples that may be
statistically related to their sexual orientation, and thus a
possible unmet need in the LGBT population.
The same study estimated that, according to 2000 Census data,
2.8% of American men and 1.4% of American women identified
themselves as gay, lesbian, or bisexual-a total of 5.87 million
people. It should be noted, however, that the researchers had
to indirectly arrive at this figure because the Census Bureau
itself does not ask respondents to provide information on their
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sexual orientation. Instead, the researchers arrived at their
estimate by cobbling together a dataset based on information
derived from households where the respondent indicated he or she
resided with an "unmarried partner" whose gender matched that of
the respondent. At best, this information indicates the
presence of a same-sex couple, and relies on certain assumptions
about the sexual orientation of these individuals-while
potentially missing gay or lesbian persons who live alone or who
did not indicate an unmarried partner in the same household. As
the author reasonably contends, the inclusion of a question
about sexual orientation will produce a more precise and
definitive answer to the very basic, yet still unknown, question
of "How many LBGT persons are there in the U.S.?"
The Williams Institute study is one example of how research
enabled by Census data can identify previously unknown
demographic characteristics and resulting public policy concerns
in a particular population, but only limited to the extent of
the data items actually gathered. Further conclusions from the
Williams Institute study can be accessed on the Internet at:
http://www.law.ucla.edu/williamsinstitute/publications/GayDemogra
phics.pdf
Census data are also used to allocate federal and private sector
funds to address unmet needs that have been identified.
According to the U.S. Census Bureau website
( http://2010.census.gov ), Census data is used to allocate more
than $400 billion in federal funds to communities each year to
provide services and build infrastructure such as hospitals, job
training centers, schools, senior centers, and public works
projects. Without accurate population-based information about a
particular community, state and federal governments may simply
have to guess about what kind of resources are needed to serve
that community.
For example, the author asserts that more Census information
about LGBT communities would help benefit the U.S. Justice
Department in spending its resources that are intended to
prevent or respond to these hate crimes against LGBT
individuals. In addition, according to the author, the federal
government has several competitive grant programs that address
health and other issues that affect the LGBT community,
including National Institutes of Health (NIH) research funding,
Substance Abuse and Mental Health Services Administration
(SAMHSA) initiatives regarding addiction and mental health
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recovery and treatment, and Centers for Disease Control (CDC)
HIV and wellness funding grants. Census data would presumably
improve the chances of groups seeking to address these public
health issues to obtain some of this federal grant money. The
author also contends that private sector foundations, such as
the California Endowment and the Hewlett Foundation, would be
more likely to distribute their funds based on the use of Census
data - which is usually seen as objective and reliable - to
demonstrate the presence of existing needs in LGBT communities.
Author's proposed amendment . Under 13 U.S.C. 5, the Secretary
of Commerce has broad authority to "determine the inquiries, and
the number, form, and subdivisions thereof, for the statistics,
surveys, and censuses" pursuant to his authority over the Census
Bureau, an agency under his jurisdiction. To reflect the
understanding that federal legislation would be sufficient, but
likely not necessary, to require inclusion of questions about
sexual orientation and gender identity on future Census
questionnaires, the author proposes an amendment that
additionally calls upon the Secretary of Commerce to adopt
Bureau policies that will also accomplish the objective of this
measure. The amendment is as follows:
On page 2, line 30, insert:
"Resolved, That the Legislature calls upon the President of
the United States to encourage, and the Secretary of
Commerce to adopt, policies to include the collection of
data on sexual orientation and gender identity in the 2020
U.S. Census and future surveys and censuses conducted by
the Census Bureau; and be it further"
REGISTERED SUPPORT / OPPOSITION :
Support
Equality California (sponsor)
AIDS Project of the East Bay
AIDS Service Center
Diversionary Theatre
Family Health Centers of San Diego
National Center for Lesbian Rights (NCLR)
Transgender Law Center
Opposition
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None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334