DHS Now Allows for Surveillance based on Sexual Orientation or Gender Identity

If you or your loved ones are part of the LGBTQ community, there are steps you should take to protect yourself.

Photo by Pawel Czerwinski on Unsplash

The Department of Homeland Security (DHS) has scrapped privacy provisions which otherwise protected people from surveillance based on sexual orientation or gender identity alone, Bloomberg reported last week.

The updated policy manual “removes references to those characteristics in sections that set guardrails on gathering intelligence,” according to the report. “The revisions follow President Donald Trump’s Jan. 20 directive to scrap policies and protections focused on diversity, equity, and inclusion across federal agencies.”

The policy now reads: “[Office of Intelligence and Analysis] Personnel are prohibited from engaging in intelligence activities based solely on an individual’s or group’s race, ethnicity, sex, religion, country of birth, nationality, or disability.” Notably absent is mention of similar protections for the LGBTQ community.

The handbook formerly included sexual orientation and gender identity in this list, which would protect some members of the LGBTQ community from targeted surveillance that would infringe upon their constitutional rights.

The DHS did not reply to a request for comment from Erin in the Morning.

“Intelligence activities” is a loosely defined term to describe any kind of information collection and analysis that the government could use to take action. In theory, this serves to uphold the rule of law and public safety. In practice, “intelligence activities” often violate the civil liberties of marginalized groups and stymie political dissent.

Don Bell, policy counsel at the Project on Government Oversight (POGO), said the renewed policy is alarming, especially within the larger trends of government attacks on the LGBTQ community. This past week alone, about 100 LGBTQ intelligence officials were fired across agencies, as Erin in the Morning previously reported,

“Whenever you remove protections, it increases the risk to disfavored communities, and really Bell told Erin in the Morning. “If you’re able to violate the civil rights and liberties of one community or one individual, then there's no limit to it.”

In 2023, POGO senior investigator René Kladzyk released an extensive report on the ways LGBTQ people are uniquely vulnerable to surveillance. Health care records, DMV documents, social media, internet search histories, and geolocation data from cell phones are just a few tools that law enforcement has used or attempted to use to target marginalized populations.

In Florida, for example, Governor Ron DeSantis forced universities to disclose the records of trans patients. In Texas, the state’s Department of Public Safety was ordered to compile a list of people who had recently changed their gender markers on their driver’s license.

Kladzyk’s investigation also found that facial recognition software had been used overseas to flag women for targeted ad campaigns — technology that could just as easily be used by schools, medical institutions, law enforcement, and everyday citizens who seek to root out trans people. (Studies have shown facial recognition software often triggers false flags for trans people and people of color.)

Bell warned that identities can be “weaponized” and then “criminalized.” After the 9/11 attacks, law enforcement began spying on mosques and targeting Muslim people and spaces for increased surveillance. Officials said such racial profiling was justified because it was in the name of stopping terrorism. But studies show that racial or religious profiling is not an effective tool for combating terrorism.

The surveillance of LGBTQ communities goes back decades, when (allegedly) queer people were purged from government positions as part of the Lavender Scare. Today, some states are returning to this dark era of history. The past few years have ushered in an uptick of efforts to criminalize queerness through legislation that punishes gender-affirming parents, doctors and educators, as well as policies such as drag bans.

“When the government gets to decide what is right and what is wrong, then you don't necessarily need to be doing anything in order to become the target of surveillance,” Bell said. Even when policies are in place to ban profiling, it often does not stop the practice.

However, there are steps everyone can take to combat mass surveillance. The Electronic Frontier Foundation offers a surveillance self-defense toolkit on their website. The guidelines can help you secure your communications through encrypted messaging apps, lock down social media accounts, and protect your biometric data. It also has specialized toolkits for LGBTQ youth, journalists, and protesters.