On Sep 10, the Census Bureau proposed new regulations that, if put into effect, would make it 'obligatory' for respondents to identify themselves as the sex they were assigned at birth. This would forcibly out all trans people in the United States to a government agency after the 2030 Census is complete, or force them to lie about their sex at birth or not fill out the census, both of which are fine-able and/or prosecutable offenses.
This is an attempt to weaponize the Census to make a list of every trans person in the United States.
Not filling out the Decennial Census is a crime, and has been since the first Decennial Census in 1790. However, the ACLU of Ohio and NBC note that nobody has ever been prosecuted under this law.
The same proposed rule notes that the Census Bureau has more data than it did in 2020, and that it now comes from public and commercial sources.
In particular, the Census Bureau is considering utilizing its enormously broad access to administrative records to determine an individual's legal status. The Census Bureau has access to a vast and expanding universe of records and information that includes, but is not limited to, Department of Treasury records; Department of Health and Human Services records; Department of Homeland Security records; Department of State records; Department of War records; U.S. Postal Service records; certain state, local, and tribal records; and third-party commercial data.
The Census Bureau's administrative record holdings is nearly exhaustive of the civilian Federal government's holdings, and the Census Bureau is continually searching for new sources of information and routinely entering into and/or updating agreements with other Federal agencies, state and local governments, and other entities to expand its access to information. The Census Bureau therefore now has access to substantially more information than it did when it conducted the 2020 Census, and the Census Bureau expects to continue obtaining additional information moving forward. The Census Bureau also has a highly-advanced data linkage infrastructure—one that has only improved in recent years as the Census Bureau has continued to develop and integrate new technologies.
That doesn't change the fact that this law, enacted when George Washington was President, is still on the books and enforceable.
Trans people are uniquely vulnerable inside the legal system which the administration is threatening them with. For example, US jails and prison make the rape of trans women a regular part of their sentence.
Gender identity and trans status aren’t directly mentioned in these rules at all, as is the norm from anti-trans government documents. Instead, the proposal states that:
(b) Questions about biological sex, date of birth, and household relationships may be included on the decennial census questionnaire for the sake of facilitating data verification for the enumeration of the population.
(c) With the exception of questions about biological sex, date of birth, and household relationships, no person shall be obligated to furnish a response to any demographic question as part of the decennial census.
Another concerning element of these rules is that the Census talks about its partnerships with the Secretary of State and the Department of Homeland Security.
While a more obvious element of concern is whether the Census is going to be weaponized by DHS to identify migrants nationwide with a single data source, it doesn’t stop there.
The State Department’s rules on passport issuance for trans people mean that it is currently impossible to get a correct passport as a trans person as a matter of policy. If data on who is trans were to reach the State Department, as this proposal argues for, there are potential knock-on effects on trans people’s freedom of movement.
Wired previously reported that the Census Bureau had been taken over by a right-wing think tank. In that report, Wired showed how the department’s work “is a clear departure from the bureau’s mandate, which does not include providing data to political appointees.”
That report also detailed how a person who drafted an early version of the voter restriction language that went into the Save Act and Save America Act “is now a “research engineer” at AFPI.”
AFPI here refers to the America First Policy Institute which is a “right wing think tank” that, according to Wired, has “deep ties to the Trump administration.”
Wired’s report continues, “AFPI’s director for secure elections policy, Thomas Lane, is also listed as one of the employees that has been detailed to the Census Bureau. Lane, a former Trump campaign staffer and election denier”.
If implemented, the rules would also remove all people “whose legal status is less durable and indefinite in length than lawful permanent resident status” from the full population count. This means the administration is trying to remove most immigrants, whether or not they’re documented, from being counted in the population of the United States.
Roughly 16.1 million people have a legal status less secure than being a permanent resident, including 14 million undocumented people, according to Pew Research. The Census Bureau is arguing that it should pretend all these people don’t exist for political reasons.
Overtaken by right-wing activists, the Census Bureau is willing to ignore tens of millions of people being residents of the US so that it can reapportion elected office away from cities, almost all of which vote against the Trump Administration.
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In the proposed rules, the Census justifies their decision in part using the three-fifths compromise. This is the portion of the constitution that declared slaves were only “three-fifths” of a person for the purpose of determining the apportionment of legislative districts.
From the proposed regulation:
One of the primary legal arguments against including illegal aliens in the apportionment count is rooted in the understanding that the term “persons,” as used in the Apportionment Clause of Article I, Section 2, was deliberately chosen instead of “citizens” to reflect the Three-Fifths Compromise but nonetheless was largely informed by (and synonymous with) the term “inhabitants,” which was historically understood to refer to members of the body politic.
The Census Bureau, in 2026, wrote that it “finds merit” with the three-fifths compromise.
In particular, the Census Bureau finds merit in the interpretive argument outlined above and has preliminarily determined that, under the best reading of the Constitutional mandate, illegal aliens (among others) should not be included in the apportionment count, as they are not true inhabitants, members of the body politic, or persons with a “usual residence” in the United States due to their lack of a sufficient tie and allegiance to the United States.
Another provision of the proposed rules would restrict the Census from asking any questions about sexual orientation, race, or ethnicity. The Bureau opens the proposal by arguing that the census process “should be colorblind and should not be distorted in any way by questions about immaterial personal characteristics, such as race”.
This is an attempt at electoral redistribution towards places which have less migrants and more support for their far-right political project.
The public comment period on these rules remains open until Oct. 13. Anyone can leave their thoughts on whether or not the Census Bureau should do this.
By requiring trans people to identify themselves by their sex assigned at birth, and with a looming threat of prosecution for noncompliance, the Trump Administration is compelling every trans person to out themselves to the Federal Government. This will then be compiled into a list that can be looked at later on.
Editor's Note: This article originally put "obligatory" in full quotes when it was a paraphrasing of the proposal. Details about the legal requirement to fill out the census were moved higher up in the article.
