Public Comment on Umbrella Pretesting Revision - SOGI Testing

September 25, 2024
Mary C. Jones
ACF/OPRE Certifying Officer
Administration for Children and Families
U.S. Department of Health and Human Services
Submitted via reginfo.gov
RE: Public Comment in Response to Submission for OMB Review; Pre-testing
Administration for Children and Families Data Collection Activities (Office of
Management and Budget #: 0970-0355)
On behalf of the undersigned organizations committed to researching and advancing the rights
and well-being of lesbian, gay, bisexual, transgender, queer, intersex, and other sexual and
gender minority people in the United States, we write in response to the Proposed Revision
issued by the Administration for Children and Families (ACF) to the existing overarching
generic clearance for Pre-testing of ACF Data Collection.1
LGBTQ+2 youth are overrepresented in the child welfare system, including in foster care, and
often face discrimination and mistreatment simply for being who they are.3 All children—
including LGBTQ+ youth of all ages—deserve access to safe and affirming homes. Likewise,
LGBTQ+ youth deserve to be counted and have their unique needs met through federally-funded
programs and services. Our organizations are committed to advancing equity and
nondiscrimination protections for LGBTQ+ youth and their families in child welfare, and remain
concerned that sexual orientation and gender identity (SOGI) data are not being collected
consistently by ACF and its program offices.
We are therefore grateful for this opportunity to offer comment, as we agree with ACF that its
“program offices could benefit from use of [the proposed] pretesting generic . . . to inform the
development of data collection activities such as grant recipient forms, forms used by programs
on ACF's behalf, and other data collection efforts driven by ACF[,]” particularly through the use
of this clearance “to pre-test sexual orientation and gender identity questions with youth.” The
collection of data on these youths’ SOGI would greatly benefit ACF’s efforts through its
program offices to serve youth in the foster care system and ought to be collected consistent with
best practices on the collection of that data whenever possible. We support this approval of the
proposed clearance, and would strongly encourage that ACF use same to engage in meaningful
research and testing on the implementation of SOGI measures within its collections of data.
1

Submission for OMB Review; Pre-testing Administration for Children and Families Data Collection Activities
(Office of Management and Budget #: 0970-0355), 89 Fed. Reg. 68444 (June 20, 2024).
2
We limit our discussion within this comment to lesbian, gay, bisexual, transgender, and queer—or LGBTQ+—
youth given ACF’s proposal specifically suggesting use of the proposed clearance to collect information on sexual
orientation and gender identity, as described further below. However, we continue to encourage that ACF collect
data on youth who are intersex as well as on other sexual or gender minority youth alongside its efforts to data on
sexual orientation and gender identity to ensure that all youth can be meaningfully counted and supported by the
agency and its program offices.
3
See generally HUMAN RIGHTS CAMPAIGN FOUND., CARING FOR LGBTQ CHILDREN & YOUTH: A GUIDE FOR CHILD
WELFARE PROVIDERS, https://assets2.hrc.org/files/assets/resources/HRC_Caring_For_LGBTQ_Children_Youth.pdf.

Identifying LGBTQ+ youth through the collection of SOGI data would allow ACF’s program
offices to implement effective interventions, minimize stays in congregate care, and improve the
permanency of placements. However, many of ACF’s existing data collection mechanisms,
including for example the Adoption and Foster Care Analysis and Reporting System (AFCARS)
managed by ACF’s Children’s Bureau program office, do not collect SOGI information from
youth. The collection of these data consistent with best practices would greatly benefit the child
welfare system, and we believe the harm of allowing LGBTQ+ youth and their families to
remain invisible outweighs any potential burden or risk. ACF must ensure that it and its program
officers are equipped with the information necessary to ensure a safe, loving, and affirming
placement for every child who is unable to live with their parents, but it cannot do so for
LGBTQ+ youth without the collection of SOGI data through collections like AFCARS.
Research on the Experiences of LGBTQ+ Foster Youth
Studies have long shown the prevalence of LGBTQ+ youth within the child welfare system. For
example, research drawing from nationally-representative samples has found that when
compared to heterosexual youth, sexual minority youth are nearly two and a half times as likely
to experience foster care placement and are largely overrepresented in child welfare services and
out-of-home placements.4 And these experiences are not spread evenly across all LGBTQ+
subpopulations: for example, a 2021 study by the Trevor Project found that transgender and
nonbinary youth had greater odds of being in foster care than their cisgender LGBQ peers.5
LGBTQ+ people often report experiences with rejection by their own families due to their sexual
orientation or gender identity that can in turn lead them to not only become represented in the
child welfare system, but also experience homelessness.6 Indeed, the Trevor Project’s study
found that LGBTQ+ youth who had been in foster care had over three times greater odds of
being kicked out, abandoned, or running away due to treatment based on their LGBTQ+ identity
compared to those who were never in care (27% vs. 8%); these numbers were even higher for
LGBTQ+ youth of color (30%) and highest for transgender and nonbinary youth (40%).7
Studies have found that foster care placements have a disproportionate impact on Black and
indigenous children and youth, who often stay in care longer and have poorer permanency
outcomes than white children.8 Indeed, the Department of Health and Human Services has
previously explained that, “[h]istorically, the public child welfare system has struggled to
provide equitable services to marginalized groups[,]” such as for indigenous and Black families
for whom rates of removal are disproportionately high—and for LGBTQ+ youth who receive

4

Jessica N. Fish et al., Are Sexual Minority Youth Overrepresented in Foster Care, Child Welfare, and Out-of-Home
Placement? Findings from Nationally Representative Data, 89 CHILD ABUSE & NEGLECT 203 (2019),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7306404/pdf/nihms-1594127.pdf.
5
LGBTQ YOUTH WITH A HISTORY OF FOSTER CARE, THE TREVOR PROJECT (2021),
https://www.thetrevorproject.org/research-briefs/lgbtq-youth-with-a-history-of-foster-care-2/.
6
See, e.g., Sabra L. Katz-Wise et al., Lesbian, Gay, Bisexual, and Transgender Youth Family Acceptance, 63 Ped.
Clin. N. Am. 1011 (2016), http://dx.doi.org/10.1016/j.pcl.2016.07.005.
7
Id.
8
See U.S. COMM’N ON CIVIL RIGHTS, THE MULTIETHNIC PLACEMENT ACT: MINORITIES IN FOSTER CARE AND
ADOPTION (2010), https://www.usccr.gov/files/pubs/docs/MEPABriefingFinal_07-01-10.pdf.

“disparate treatment . . . and unfavorable outcomes[.]”9 Research has found that these outcomes
for LGBTQ+ youth can include poorer functioning in school, higher rates of substance use, and
increased rates of psychological distress when compared to their non-LGBTQ+ peers.10
Research shows that acknowledging and affirming an LGBTQ+ youth’s sexual orientation,
gender identity, and expression is critically important to their health and well-being, as well as
their success in the future—including both their safety and success in foster homes.11
Importance of Collecting SOGI Data from Foster Youth
The collection of SOGI information by ACF would allow it and its program offices to develop
and implement programs, interventions, and other services to understand and meet the specific
needs of these youth. In particular, we highlight that these data could be particularly useful in
ensuring agencies across the country comply with their obligations to provide LGBTQ+ youth
with “‘safe and proper’ care and [] a case plan that addresses the specific needs of the child while
in foster care to support their health and wellbeing” as outlined in a recent rulemaking by ACF.12
Comprehensive and consistent SOGI data collection by ACF and its program offices would
provide an opportunity for foster youth to voluntarily identify themselves as LGBTQ+ and
maximize ACF’s ability to create evidence-informed best practices that can be used to improve
their individual outcomes in care despite the challenges they often face when compared to their
non-LGBTQ+ peers. Indeed, in January 2023 the Subcommittee on Sexual Orientation, Gender
Identity, and Variations in Sex Characteristics—now part of the Subcommittee on Equitable
Data of the National Science and Technology Council—published that Federal Evidence Agenda
on LGBTQI+ Equity, which serves as a roadmap for federal agencies working to build evidence
and leverage SOGI data to advance equity for LGBTQI+ people.13 As summarized in that
agenda, the executive order “recognizes that in order to advance equity for LGBTQI+ people, the
Federal Government must continue to gather the evidence needed to understand the LGBTQI+
community, the barriers they face, and the policy changes the Federal Government can make to
enable their health and well-being.”14
Safe and confidential SOGI data collection is more critical now than ever, given growing
hostility nationwide against LGBTQ+ people, especially transgender and nonbinary youth.15 We
appreciate and understand past concerns that have been raised regarding the possible use of
SOGI data collected through mechanisms like AFCARS to perpetuate further discrimination and
harm by anti-LGBTQ+ state actors or agencies. While we share the underlying concern
9

See, e.g., Gateway, Disproportionality Data, U.S. DEP'T OF HEALTH & HUMAN SERVS.,
https://www.childwelfare.gov/topics/systemwide/cultural/disproportionality/data/ (last visited Nov. 22, 2023).
10
See, e.g., Laura Baams et al., LGBTQ Youth in Unstable Housing and Foster Care, 143 PEDIATRICS e20174211
(2019), https://doi.org/10.1542/peds.2017-4211.
11
Moving Beyond Change Efforts: Evidence and Action to Support and Affirm LGBTQI+ Youth, SAMHSA (Mar.
2023), https://store.samhsa.gov/product/moving-beyond-change-efforts/pep22-03-12-001.
12
Designated Placement Requirements Under Titles IV-E and IV-B for LGBTQI+ Children, 89 Fed. Reg. 34818
(Apr. 30, 2024).
13
NAT’L SCIENCE & TECHNOLOGY COUNCIL, FEDERAL EVIDENCE AGENDA ON LGBTQI+ EQUITY 14 (2023),
https://www.whitehouse.gov/wp-content/uploads/2023/01/Federal-Evidence-Agenda-on-LGBTQI-Equity.pdf.
14
Id. at 3.
15
See, e.g., HUMAN RIGHTS CAMPAIGN, LGBTQ+ AMERICANS UNDER ATTACK: A REPORT AND REFLECTION ON
THE 2023 STATE LEGISLATIVE SESSION (2023), https://hrc-prod-requests.s3-us-west-2.amazonaws.com/AntiLGBTQ-Legislation-Impact-Report.pdf.

regarding discrimination and stigma experienced LGBTQ+ youth, the reality is that agencies and
states already identify and target LGBTQ+ youth and families without these data. To be clear,
keeping LGBTQ+ foster youth will not protect them, but rather will perpetuate further harm by
hindering the federal government’s ability to protect and address the disparate outcomes of
LGBTQ+ youth in the child welfare system, including through recent state government efforts.
ACF should therefore move forward with its suggestion that this clearance be used to research
and test SOGI measures for implementation throughout its data collection mechanisms.
Existing Research and Best Practices for SOGI Data Collection
Like with other demographic items, we encourage ACF to pursue the collection of SOGI
information consistent with best practices on the collection of that data, including and
particularly those that center youths’ rights to privacy and confidentiality.16 For decades,
government and other researchers have studied SOGI and found that it is possible to measure
these concepts well and obtain high-quality data, including from youth. Likewise, research
shows that respondents largely do not find this information to be so sensitive that they would not
provide it.17 In a recent report on the collection of SOGI information in the context of federally
supported surveys, the Office of Management and Budget highlighted guiding principles that
have emerged out of these years of work to support the ongoing collection of SOGI information,
including that collected data should have utility, be in support of an agency’s mission, and be
done with an emphasis on protecting respondents’ confidentiality.18 Various studies have also
shown us the importance of evolving SOGI measures that reflect new categories of selfidentification alongside best practices for data collection involving youth.19 ACF should draw
from this research when moving forward on any implementation of SOGI measures within its
own collections, and additionally should use the proposed clearance to build on that research
through its own testing.
Conclusion
LGBTQ+ children are among the most vulnerable populations that ACF serves. By researching
and implementing well-tested SOGI measures to its existing data collection efforts like
16

See generally NAT’L ACADEMIES OF SCIENCES, ENGINEERING, & MED., MEASURING SEX, GENDER IDENTITY, AND
SEXUAL ORIENTATION (2022), https://nap.nationalacademies.org/catalog/26424/measuring-sex-gender-identity-andsexualorientation (outlining the results of a Consensus Study Committee at the National Academies of Sciences,
Engineering, and Medicine tasked with developing recommendations for the measurement of sex, gender identity,
and sexual orientation through the federal government’s population-based surveys, as well as in clinical and
administrative settings, and which provides guiding principles for that work like inclusiveness, precision, respecting
autonomy, collecting only necessary data, and a dedication to confidentiality).
17
Id. at 52–55, 67.
18
OMB, RECOMMENDATIONS ON THE BEST PRACTICES FOR THE COLLECTION OF SEXUAL ORIENTATION AND GENDER
IDENTITY DATA ON FEDERAL STATISTICAL SURVEYS 3 (2023), https://www.whitehouse.gov/wpcontent/uploads/2023/01/SOGI-Best-Practices.pdf.
19
For example, in 2022 the Journal of the American Medical Informatics Association published a study that
examined methods that pediatric primary care practices could use to collect and document SOGI information with
children and adolescents in certain settings where ACF is already requiring the collection of demographic data.
Hilary Goldhammer, et al., Pediatric sexual orientation and gender identity data collection in the electronic health
record, 29 J. AM. MED. INFORMATICS ASSOC. 1303 (2022), https://academic.oup.com/jamia/articleabstract/29/7/1303/6565894?redirectedFrom=fulltext.

AFCARS, ACF would be better equipped to ensure that all LGBTQ+ youth served by its
programs feel safe, affirmed, and loved. We therefore urge ACF to proceed with its proposed
clearance and with our recommendations here on using same to test how it might best measure
youths’ SOGI through its existing data collections.
Please do not hesitate to contact us at luis.vasquez@hrc.org if you would like to discuss these
comments further. Thank you for this opportunity to provide our feedback in support of
LGBTQ+ foster youth.