While June has undoubtedly been a groundbreaking month for the LGBT community with the Obergefell v. Hodges marriage equality decision, May was an important month as well. In May, the FDA followed through on its promise to reevaluate its current stance on blood donation from men who have sex with other men (MSM) by issuing a draft guidance proposing a 12 month deferral period. The draft guidance bars male donors who have “a history in the past 12 months of sex with another man.” The public will have 60 days to comment on the draft guidance and the FDA will ultimately issue a final guidance after reviewing the comments.
Currently, the FDA imposes a lifetime blood donation ban on “men who have had sex with other men (MSM), at any time since 1977.” he MSM rule was implemented in 1983 at the beginning of the AIDS crisis when the spread of the disease through transfusion was first recognized. The ban was initially created to be an outright ban on gay and bisexual men; however, in 1992 the FDA changed to its current policy to shift the focus from excluding whole populations it believes to be risky to excluding individuals engaging in risky behavior.
While it is FDA policy to limit donors based on risky behavior, the end result of the policy is an essential ban on gay and bisexual men. If the risky behavior the MSM rule is trying to prevent is unprotected anal sex, then the guidance should not be directed exclusively at men who have sex with men. Women have anal sex, unprotected sex, and unprotected anal sex.
Both the current rule and the proposed guidance, perpetuate the stereotype that “gay sex, particularly anal sex, is deviant, disgusting, and diseased.” The rule also highlights the stereotype that if women engage in anal sex, it is an isolated, discreet, and accidental incident and also enforces the stereotype that heterosexual couples having unprotected sex are in a committed and monogamous relationship. But unprotected sex is seen as routine practice for those who identify as gay or bisexual because it is not possible for them to engage in a healthy, committed, and monogamous relationship since their sexual orientation by nature means they are sexually deviant.
Although a change from a lifetime ban to a 12 month deferral is progress, does it really go far enough? The new guidance will allow for a possibility of gay and bisexual men to donate, but the rule still stigmatizes them as a group. Many human rights and advocacy groups criticize the 12 month deferral for being too long because current tests can detect HIV as early as nine to eleven days after exposure.
The draft guidance also attempts to clarify the FDA’s policy on transgender donors. The note reads, “In the context of the donor history questionnaire, male or female gender is taken to be self-identified and self-reported. In instances where a donor has asserted a change in gender identification, medical directors may exercise discretion with regard to donor eligibility.” The FDA has been silent regarding transgender donors, as no official rule or draft guidance has been issued. As a result, blood donation and plasma centers have been left to create their own policy that has ultimately become a complete ban on transgender donors because blood banks and plasma centers view it as the simplest policy. Currently, there are multiple lawsuits around the country against blood and plasma donation centers for discrimination against transgender individuals. A transgender woman in Minnesota, Lisa Scott, is suing a CSL plasma center after being turned away. In Kent, Washington, Jasmine Kaiser is also pursuing legal action against CSL plasma center for being turned away because she was born biologically male.
Although the proposed guidance is a step in the right direction that will allow some gay and bisexual men to donate, the guidance is extremely lacking in its response to transgender donors. The guidance is also only one step among many steps that should be taken to ensure equality in the way we screen blood donors. Until the FDA abolishes the MSM rule completely and creates proper policies to address transgender donors, discrimination against the LGBT community will continue.