Federal Efforts to Collect Sexual Orientation and Gender Identity Data

By: Evan Szarenski and Chad Peddie 

The reporting of sexual orientation and gender identity data has been on the minds of federal contractors for a long time. Currently, there is no reporting requirement and there is limited guidance on how to treat non-binary individuals in affirmative action programs (AAPs) under Executive Order 11246. However, movement has occurred at the federal level to develop guidance for collecting sexual orientation and gender identity (SOGI) data. This post provides an update on three recent federal developments regarding SOGI data.

 One of President Biden’s first acts was to sign Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” The Executive Order set advancing equity as a priority of the Biden Administration and laid out several steps that the federal government would take to help advance equity. One of these steps was directing the White House Office of Science and Technology Policy (OSTP) to establish the Interagency Working Group on Equitable Data (“Working Group”), made up of representatives from various federal agencies. 

 The Working Group was created partially out of a recognition that many federal datasets are not disaggregated by key demographic variables. This lack of disaggregation impedes efforts to measure and advance equity at a meaningful level. To begin addressing the lack of disaggregation, the Working Group was given two tasks: 

1. Study and provide recommendations identifying inadequacies in existing Federal data collection programs, policies, and infrastructure, as well as strategies for addressing any deficiencies identified.
2. Support agencies in implementing actions that expand and refine the data available to the Federal Government to measure equity.

After consulting with groups both inside and outside of the federal government, the Working Group released a report on April 22, 2022. The report recognized, among other things, that there is a lack of government-wide guidance for measuring sexual orientation and gender identity and recommended that best practices be established. 

 2. Executive Order 14075 on Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals (June 15, 2022) 

 Building on Executive Order 13985, Executive Order 14075, “Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals” (LGBTQI+) was issued June 15, 2022, to drive the appropriate collection and use of data on sexual orientation, gender identity, and sex characteristics (SOGI data). This Executive Order tasked the co-chairs of the Working Group with instituting a subcommittee on SOGI data. This group now resides in the National Science and Technology Council (NSTC) Subcommittee on Equitable Data. The group’s primary responsibility is to develop and release the Federal Evidence Agenda on LGBTQI+ Equity. Below are the key timeframes set out in EO 14075. 

3. Request For Information (RFI) titled “Federal Evidence Agenda on LGBTQI+ Equity” 

Putting Executive Order 14075 into action, the OSTP recently published an RFI titled “Federal Evidence Agenda on LGBTQI+ Equity.” It consists of 12 questions focused on three general categories of content. Some items asked about disparities faced by LGBTQI+ individuals, families, and households. The second group of questions focused on improving data collection efforts (e.g., reducing duplicative information, and communication with the public). Finally, questions address security, privacy, and civil rights aspects applicable to the LGBTQI+ community. The goal of this RFI is the collection of information from researchers and consultants in the public sector/space to help shape the strategy toward the Federal Evidence Agenda on LGBTQI+. 

While none of these actions are likely to have an immediate impact on OFCCP or federal contractors, they may shape OFCCP’s regulatory actions and subregulatory guidance moving forward. DCI will continue to follow developments regarding SOGI data collection and provide updates as more information is available.