08/01/2013 12:46 pm ET Updated Oct 01, 2013

Let Low-Risk Gay Men Give Blood


Americans could soon die waiting for the blood they need. Blood supplies are so low this summer that the Red Cross has issued an emergency call for donations and suspension on elective surgeries in several major cities. It isn't just tragedies like the Boston Marathon bombings and the Oklahoma tornado that have exacerbated the critical blood shortage nationwide. So too has the outdated and troubling exclusion of millions of healthy adults who are waiting to give blood to save lives.

The United States is among handful of holdout countries that forbid blood donations from men who have had sex with another man. In Australia and the United Kingdom gay men are allowed to give blood after a year since their last sexual contact with another man, and after five years in New Zealand and, most recently, Canada. In the United States, by contrast, federal guidelines require that blood collection agencies permanently turn away any man who has had sex with another man since 1977, when HIV was introduced to the country.

The Food and Drug Administration stands by its discredited position that the deferral policy usefully reduces the risk of transmitting the virus that causes AIDS. It's true that men who have sex with men are at greater risk of acquiring HIV, according to the Centers for Disease Control. And even the most reliable laboratory tests can't detect evidence of infectious diseases in a person's blood for a certain period of time after he's been exposed. But that's why all would-be donors are already subject to exclusions based on travel, behavior, and health conditions that increase their risk of transmissible infections.

Advances in screening technology enable us to detect HIV within 12 weeks of exposure, reinforcing the fact that the categorical donation ban on men who have had sex with men is medically unwarranted. Accordingly, every major public health organization that collects blood -- the American Red Cross, America's Blood Centers, and American Association of Blood Banks -- all recommend tying deferral to individual risk factors, not to sexual orientation. The American Medical Association likewise voted on July 20 to repeal the lifetime ban on gay men in favor of a waiting period for blood donation by any person, gay or straight, who has unprotected sex with multiple partners.

The federal ban on blood donation by gay men isn't just bad health policy. It's wrongful discrimination. The tricky part is explaining exactly why.

Most critics denounce the policy's intentions and its effects. However, I've seen no good evidence that it was meant to promote illegitimate purposes like animus or indifference toward gay men. To the contrary, the fact that the FDA has consistently solicited guidance from the gay community suggests that the deferral policy was designed not because but in spite of the exclusion it establishes. Nor does that policy burden gay and bisexual men in as serious a way as critics claim. There's the insult and stigma of being singled out based on the sex of one's past partners. And losing out on the opportunity to help save lives deprives gay men of a valued public pursuit like military service and registration as an organ donor. Even so, trying to filter resistance to the ban through the lens of hurt feelings and civic duties feels insufficient and misses a more subtle but powerful objection.

This deeper concern goes beyond discriminatory intentions or effects. Here it is: Singling out gay donors, without evidence that their exclusion serves public health, expresses a social meaning that undermines their dignity as equally respected members of the political community. The FDA's selective ban on giving blood imparts the disparaging idea that any gay man -- even if he practices safe sex within a monogamous relationship -- should be treated as if he has a disease that remains sadly bound up with perceptions of promiscuity, drug use, shunning, and shame. This troubling social meaning cannot be reduced to concerns about the mindset of government officials or the impact of exclusion on a historically disadvantaged group. I call it the expressive dimension of donor deferral.

The FDA should act now to allow low-risk gay men to donate blood. Revising the federal policy in this way will serve the cause of social equality, and public health too. Doing so not only will repair the demeaning message of donor exclusion but will help relieve our present blood shortage. With so many in need, this is an easy one. And while federal regulators muster the political will to make this change, those who already have this opportunity to help others should consider donating today.

Dov Fox is an assistant professor of law at the University of San Diego. He writes and teaches on topics in health law and biotechnology.