Gay-Rights Battle Brewing Over 2010 U.S. Census

"Sarah," an active-duty soldier in Iraq, can hardly be questioned for her patriotism or courage. But when it comes to filling out her 2010 census form, her primary emotion is fear. "I keep real quiet about my partner," she tells NEWSWEEK. "Even this conversation is a violation of the law, but I've stepped away from the other soldiers so I'm not 'a threat to morale.' " Sarah is tired of the subterfuge and wishes she could use her real name for this article without getting fired under "don't ask, don't tell" legislation. She's anxious because she knows this census is a watershed moment for the entire lesbian, gay, bisexual, and transgendered (LGBT) community, as it is for gay soldiers. "A lot of people don't want to believe there are 60,000 of us in the military. I don't believe it either. I think that number is bigger."

For the first time in the centuries-long history of the census, the number of same-sex couples who self-identify as married—license or no license—will be tabulated and released to the public. The move is seen as both a friendly nod to the gay community—which had pinned its hopes on President Obama and has, at least in some quarters, been frustrated by a perceived slow response to gay-rights issues—and a boost to policy fights, from challenging laws that limit gay adoptions to the nationwide legalization of gay marriage.

The release of the data also marks a major shift in the evolution of the Census Bureau. In 1990 it edited the answers of self-identified gay husbands and wives to make them appear as opposite-sex partners; in 2000, instead of editing the sex of a gay spouse it edited the data to describe the same-sex couples as "unmarried partners." While the Census Bureau doesn't make policy, its data will be instrumental to inform it. "This will not be a count of the gay population of the U.S., but it will be the biggest, most profound data set that anyone has ever had," says Timothy Olson, assistant division chief in the U.S. Census Field Division. "There will finally be good data for policymakers to engage in the issues with facts, not speculations."

That upsets some conservatives, who argue that by releasing the data, the bureau is violating the 1996 Defense of Marriage Act (DOMA). "Federal law states that marriage is between a man and woman," says Wendy Wright, president of Concerned Women of America. "This is a denial of federal law." But she and other family-values leaders lost that argument this summer when Obama reversed the Bush's administration's refusal to release the figures. Since DOMA applied only to policymaking agencies, and since the census asks only if a person is a husband or a wife, not if they are "married," the census, the Obama administration argued, does not violate DOMA.

Nonetheless, some conservatives predict the census will do more harm than good for the gay-rights movement. "There are early indications from states that have allowed such unions that their numbers are not growing," says Wright. "The census count may end up being a bit of an embarrassment for gay activists." A 2008 census poll of 3 million households showed that 150,000 same-sex couples used the terms "husband" or "wife" to describe their partner (about 27 percent of the estimated 564,743 same-sex couples living in the U.S.). Yet only 35,000 marriage licenses had been issued by the end of 2008 in Massachusetts, California, and Connecticut, according to the Williams Institute, a UCLA law-school think tank dedicated to sexual-orientation law and public policy. So even without a license, many couples count themselves as married.

This has angered gay-marriage opponents, who say gay couples are falsely boosting their numbers. But gay advocates are not swayed. "You can decide what lying is," says the Williams Institute's Gary Gates. "The census questionnaire doesn't ask if you are legally married; it asks [about] relationships, such as husband or wife. So you could have been married in a church or in a commitment ceremony but have no license." In part to resolve questions such as this, the census has asked specialists like Gates to advise a follow-up project to improve data collection, including ways to track legal relationships like civil unions or domestic partnerships.

Even if the data will not be a full count of all gays in America, the census is expected to shed light on underreported issues like gay poverty, especially given the common perception that gay couples are predominantly white and wealthy. According to recent research by the Williams Institute and the University of Massachusetts, some 20 percent of children belonging to gay couples live in poverty, compared with 10 percent of children of heterosexual couples. "The census," predicts Gates, "will be a boon for challenging stereotypes."

Census officials expect a significant response from lesbian and gay couples in 2010, not just because gay marriage wasn't yet legal in any state before 2000, but because the Census Bureau has launched a first-ever outreach effort to the gay community—one that assures people their answers are confidential and cannot be shared with law-enforcement, military, or immigration officials.

Matt Weinstein, one of 25 professional outreach staffers (out of 1,000 that target hard-to-reach communities) is working with gay organizations to spread the word and prevent a much-feared undercount in the gay community. "There are people who don't want to be 'outed' and here they are getting a government form." He's welcomed by the gay community, he says, but with surprise. "At gay parades when I set up a table, people will walk up and ask, 'What is the census doing here?' "

The census will only measure gay relationships and doesn't ask about sexual orientation. "There's no gay box," says Weinstein. If you are not cohabitating with a same-sex partner, there is no way on the census to indicate you are gay. "Neither DOMA nor 'don't ask, don't tell' mandates data collection," says Gates.

On Wednesday President Obama will sign the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which will make it a federal crime to attack an individual based on sexual orientation or gender identity. The bill is named in honor of two horrific 1998 murders; that of Matthew Shepard, a gay white teenager tied to a fence and beaten to death in Wyoming, and James Byrd Jr., a black man tied to a pickup truck and dragged to death in Texas. "This is the first federal law that acknowledges LGBT discrimination and provides some protection," says Gates, who hopes that the passage of new federal laws will help give the census a mandate to have an ongoing government survey that asks sexual orientation so it can be tracked over time, and used in further policy efforts. "It's time to begin that dialogue," says Gates. "We have no way in federal statistics to comprehensively count how many gay people there are in the U.S."

The Census Bureau's outreach, including posters and public-service announcements, is already generating excitement about high numbers of gay couples participating. "This will directly impact our ability to end discrimination by quantifying the number of people harmed by legal discrimination and lack of protections," says Molly McKay of Marriage Equality USA. The data, she says, "will show how we are raising kids and paying taxes and we exist all over the U.S., all without legal protections."

As for service members, if asked, please do tell, is the message from the Census Bureau. "It has nothing to do with secretly trying to identify married [gay] people," says Martin O'Connell, head of the Census Bureau's Fertility and Family Statistics Branch. But "there is an ingrained fear of people knowing who you are, which reaches into the census," cautions Lt. Dan Choi, who is currently being discharged from the Army for being gay. Choi is on the board of Knights Out, a group of West Point alumni, staff, and faculty working to fight "don't ask, don't tell," that is also taking up the census as a cause. "It is fascinating that numbers will not be based on individual identity, but on love," says Choi. "That's a clear message that we are not defined by our coming out, but by our commitments."