New Jersey could soon be missing a critical opportunity to enhance public health and welfare if it does not pass pending legislation to collect sex, gender and sexual orientation statistical information like its sister jurisdiction Pennsylvania, as well as California, Washington, Michigan and New Mexico, are already doing.  The Bills, A4137/S2459 (Huttle/Murphy/Weinberg/Greenstein) and A1060 (Jassey/Zwicker/Downey/Huttle), are currently pending before the New Jersey Legislature and would address a disparity in health data collection and analysis that could provide critical insight into health status and outcomes for these communities. The proposed law would authorize collection of data by voluntary disclosure for the purpose of statistical research and study to improve the delivery of government services as well as health care and education. It would ensure the collection of self-disclosed information about sex, gender identity and sexual orientation across all state agencies and in hospitals and health-care facilities.

Data collection and analysis are critical components of well-run systems and successful operations. Numerous companies including Google, Facebook and others openly acknowledge this practice, ostensibly to help provide better and more focused services to their customers, but also to mine and aggregate user data to create marketable profiles that they use, lease or sell. There are even more companies that you likely have not heard of, so-called data brokers, that traffic in such information—the clicking and buying patterns of purchasing choices that allow them to analyze who you are as a consumer and predict your future consumer spending. These companies transact in data exactly for the reasons you already know they do it—data has immense power to unlock the puzzle of predictive human behavior.

Beyond consumer spending, there are few places data collection and analysis are more important and, indeed, essential than in governmental public health efforts. The collection and analysis of various types of disease and health data permit authorities to understand impacts, see patterns, and respond effectively while adapting or adjusting their efforts to proactively address problems. This informed analysis begins with mining and understanding data and information about, for example, COVID-19 patients to determine how to focus on the greatest need or flare-up and direct our resources and treatments to better respond to those in need.  Indeed, the COVID-19 pandemic has laid bare the importance of data, not just as a tool to assess current problems but to utilize the statistical patterns they weave. With that important information, we can better predict outcomes in order to shift spending and treatment to proactively respond and minimize negative health outcomes.

Against the backdrop picture that data and informed analysis paints, we already see likely patterns of potentially greater morbidity and mortality associated with COVID-19 in nursing homes, among racial minorities, and impacting other demographics such as men. This is because the Garden State is already tracking the health disparities among people of color and the barriers to care they face in this pandemic. It is indisputable that LGBTQ people fall victim to the forces of discrimination as other minority groups do, but the government is unable to quantify how badly because of a lack of data. Like all marginalized communities, LGBTQ people are disproportionately impacted by disparities in health care, making the community more vulnerable to COVID-19 and related illnesses. Data collection and analysis enables government to implement effective, targeted distribution of state resources and funding based on the information and patterns the data discloses. If you do not have the data, you cannot analyze the information and patterns.

The University of California, Los Angeles' Williams Institute, estimates that 4.1% of all New Jerseyians are LGBTQ, conservatively placing the community's population somewhere north of 300,000 residents. New Jersey currently mandates sex, gender and sexual orientation data collection within higher education, but A4137/S2459 and A1060 would go further. It would provide for collection of this demographic data across a wider swath of government, providing information to help better distribute resources and services. Right now, such informed data analysis could be helping assist public health officials by enhancing their understanding of COVID-19 impacts at this critical time. The collection of information about an individual's sex, gender, or sexual orientation for the purposes of statistical research or study would be required under A1160; the individual's disclosure of that information would be purely voluntary.

Last month, in my New Jersey Law Journal column, "A Tale of Two States" (April 30, 2020), I discussed the discordant experience of New Jersey and New York in the roll-out of the data-driven Criminal Justice Reform (CJR) effort, and the effects of COVID-19 on participants in their justice system. New Jersey fared well in that comparison, with the scales tipping heavily in New Jersey's favor as a leader in CJR efforts and protection of Constitutional safeguards. This month's analysis, unfortunately, shows that New Jersey has some catching up to do when held up against its neighbor to the west, Pennsylvania.

The Keystone State, under the leadership of Governor Tom Wolf, has recently engaged vigorous efforts to implement data collection and tracking tools during the COVID-19 pandemic that incorporate these simple additional data points. In his May 11, 2020, press release touting this step forward, Governor Wolf stated that he was taking "another step in his commitment to fair treatment and inclusion of LGBTQ Pennsylvanians by announcing ways the community will be counted in COVID-19 data. As counties in the [C]ommonwealth move from the red stay-at-home order to the aggressive mitigation efforts of the yellow phase, the Department of Health will be conducting extensive case histor[y] investigations as part of contact tracing on those who test positive for the virus." See https://www.governor.pa.gov/newsroom/gov-wolf-announces-inclusion-of-gender-identity-sexual-orientation-or-expression-in-covid-19-data-collection/

Collecting data in government services and health records is essential to providing high-quality, patient-centered care and underpins sound public health strategy. We cannot create informed prognostication for minority communities, including those recited in A4137/S2459 and A1060, without taking this critical step right now. As Jackie Baras, the Director of LGBT Programs at Robert Wood Johnson University Hospital poignantly noted, collecting this data "will not only give us the ability to leverage the information we need to advance health equity by eliminating health disparities, it will also help us provide those specific services for better health outcomes." In this way, data is a vehicle to not only advance public health, but also each individual's health planning and treatment.

New Jersey is at the epicenter of the international pandemic and now moving forward to re-open society safely with an eye toward fully protecting its most vulnerable residents. What better time do we have to collect data than now? We have no time to waste. The collection of sex, gender and sexual orientation data in New Jersey should not be avoided or ignored for political expediency or because there is a perception that this information and analysis is not important to the majority of people.

Thomas H. Prol, a Member of Sills Cummis & Gross, P.C., is the past president of the New Jersey State Bar Association and its first openly gay leader. In addition to being a monthly New Jersey Law Journal columnist, he is a founding member and continues to serve on the executive board of Garden State Equality, the state's leading LGBTQ education and advocacy organization that is pushing for passage of A1160.