Why Does The FDA Still Discriminate Against Men Who Have Sex With Men?

The California legislature ended their session last week by calling on President Obama to compel the Department of Health and Human Services to end federal blood donation policies that discriminate against men who have sex with men (MSM).

While the U.S. Food and Drug Administration (FDA) updated its policy last year — ending a lifetime ban on blood donations with MSM (first instituted in 1983, when little was known about the transmission of HIV/AIDS) — the guidelines remain highly discriminatory.

“The FDA is changing its recommendation that men who have sex with men (MSM) be indefinitely deferred . . . to 12 months since the last sexual contact with another man,” FDA Acting Commissioner Stephen Ostroff, M.D. told CNN in December. “We have taken great care to ensure this policy revision is backed by sound science and continues to protect our blood supply.”

Ostroff’s assessment that the policy is “backed by sound science,” though, is challenged by legislation, advocates, and organizations like Equality California, the nation’s largest statewide lesbian, gay, bisexual and transgender civil rights organization and sponsor of SB26.

CA’s Senate Joint Resolution №26 (SB 26) reads, in part:

“A 12-month deferral policy for gay and bisexual men to donate blood is overly stringent given the scientific evidence, advanced testing methods, and the safety and quality control measures in place within the different FDA-qualified blood donating centers.”

According to Equality California, blood donating centers and organizations that collect and distribute blood in response to emergencies also want to see the ban completely lifted. The American Red Cross, the American Association for Blood Banks, America’s Blood Centers, and the American Medical Association (AMA) have all called for a reevaluation and change of the policy because of its excessively broad nature and advances in blood testing.

In fact, a 2014 analysis done by the Williams Institute at the UCLA School of Law argues that lifting the revised policy on MSM blood donation could result in some 615,000 additional pints of blood annually nationwide and an additional 75,000 donated pints just in California. Because the needs of individual patients receiving transfusions vary, it’s hard to say exactly how many people could be helped, but the American Red Cross fact sheet says, “a single donation can potentially help more than one patient” and that someone needs blood every two seconds in this country.

“The problem is that the guidelines are overly broad, not based on current understanding of HIV or how it’s transmitted, and continue to stigmatize and discriminate against men who have sex with men. They’re based on who you are, not what you do,” Jason Howe, communications director for Equality California, told The Establishment. “While the FDA revised its lifetime ban, it still requires a year of celibacy before an HIV-negative gay man in a monogamous relationship can donate. Meanwhile, a heterosexual man who engages in high-risk activities with multiple sexual partners is allowed to donate without restrictions.”

The hypocrisy of singling out MSM is clear. Statistics from the Centers for Disease Control and Prevention say that gay and bisexual men account for an estimated 67% of all HIV diagnoses, a far cry from comprising all of the cases. In 2014, heterosexual contact actually accounted for 24% — or 10,527 — of estimated HIV diagnoses. So, if the ban is meant to address concerns over HIV/AIDS, targeting MSM specifically is hardly sufficient. Also, thanks to education and testing resources, the number of new HIV diagnoses fell 19% from 2005 to 2014 — a statistic the CDC calls “a true decline in new infections.”

When paired with the increasingly accurate and affordable screening process for donated blood, it seems ridiculous — as well as prejudicial — to single out the entire MSM population. According to the guidelines, transgender people are not specifically singled out — but they are subject to rather intrusive questions. Blood donation screening questionnaires have to inquire about self-identity — questions that in blood drives aren’t protected conversations between an individual and their physician. Donor records are protected, but especially during blood drives, these discussions are happening with people nearby — volunteers who trans people may understandably not be comfortable being open around.

Gabe Ortíz, an LGBT and immigrant rights advocate based in San Francisco, praised his legislators for taking action. Considering California’s 39.1 million residents are 12.2% of the country’s population, it’s powerful to have those elected to speak for them make noise.

“Many healthy gay and bisexual men who know they are HIV-negative want to donate blood, but can’t because of discriminatory FDA policies,” Ortíz told The Establishment. “This bipartisan resolution from our legislators is a step in the just direction. The FDA should listen to science, not outdated fears.”

The outdated fears were highlighted over the summer in the aftermath of one of the worst episodes of gun violence in our country’s history. When the mass shooting at Pulse, a gay nightclub in Orlando, happened in June, members of the LGBT community and allies engaged in the traditional supportive act of visiting blood donation centers to replenish some of what was lost treating the dozens of victims. Many were unable to give.

“During the recent tragedy in Orlando, it was painful to read about gay and bisexual men who wanted to help by donating blood, only to be turned away due to bigoted and outdated policies,” said Ortíz. “There’s zero reason to exclude healthy individuals when modern technology makes donating blood safe.”

San Diego Assemblywoman Lorena Gonzalez agreed. “Modern scientific standards allow for blood donation screening that doesn’t rely on blanket discrimination to keep the public safe,” Gonzalez told The Establishment. “This policy is a relic of fear and intolerance that now sacrifices our ability to save lives for no good reason, and it needs to change.”

SB 26 had widespread bipartisan support — and even sponsorship from Assembly Republican Leader Chad Mayes (R-Yucca Valley).

“America is facing a critical blood supply shortage. Many healthy men want to donate blood, yet are being denied due to an outdated, discriminatory policy. This is wrong,” Mayes said via press release. “No healthy person should be turned away when they want to help save people’s lives. Republicans and Democrats stand together in urging Washington to develop new blood donation policies that are based on sound science, not fear.”

While the resolution can’t force the Obama administration to further revise the blood donation policy, moves like this can help build public consensus and understanding. If Obama’s FDA won’t get itself up to date in the last days of his administration, perhaps the next president will be willing to tackle it thanks to ramped up pressure — and the power of logic — putting it squarely on their radar.

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Lead image: flickr/Luke Hardcastle

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