Lambda Legal Responds to Proposed Change in Blood Donation Policy with Call for Real Reform

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May 12, 2015
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Scott Schoettes

The U.S. Food and Drug Administration (FDA) today announced proposed guidelines for blood donations that change the current lifetime ban for men who have sex with men (MSM) to a one year ban.

In addition, the proposed guidance addresses the application of the MSM policy to transgender people, stating that transgender individuals should be allowed to self-identify and self-report their gender, but that in instances where a change in gender is asserted, the collection center may exercise its “discretion” as to whether the person may donate. The proposed guidelines arrive after the recommendations were announced in December, following increasing calls from LGBT advocates and the medical establishment, including the American Red Cross, the American Association of Blood Banks, America’s Blood Centers, and, most recently, the American Medical Association, to end the discriminatory and unnecessary ban. Today’s announcement officially starts the 60-day comment period on the proposed guidance.

Like the proposed change from a lifetime ban to a one-year ban for gay and bisexual men, the guidance announced today with respect to transgender people does not go far enough. An evidence-based policy would focus exclusively on the risk activities of the donor, and not on the identity of the donor or the identity of the person with whom the donor is engaging in those activities. Risk behaviors do not have a sexual orientation or gender identity.

Deferrals should be based entirely on the conduct of the potential donor, rather than the person’s identity with regards to sexual orientation, gender identity or perceived risk factors based on the person’s identity. Within 45 days of exposure, currently required blood donation testing detects all known serious blood-borne pathogens, including HIV. Therefore, deferring anyone longer than two months is not necessary and does not noticeably enhance the safety of the blood supply.

We are glad that the proposed new guidelines allow a subset of gay and bisexual men who have abstained from sex for a year to donate, but the proposed policy does not recognize the major advances in assessment of the level of risk from different activities or the significant strides made in detecting HIV and other blood-borne pathogens. Furthermore, while we are pleased transgender people will be able to affirm their gender identity in the donation process, the discretion provided to blood collection centers with respect to donors who identify as transgender exacerbates the uncertainty of the current policy and opens the door to further discrimination.

HIV is transmitted only through activities involving risk, and the FDA should base its donation policies entirely on engaging in those activities, not on the identities of the people engaging in them. The solution we propose really is quite simple and straight-forward, and we are hopeful that the FDA will recognize this and continue moving us toward such an individualized risk-based policy.

We will voice these concerns during the comment period for these proposed guidelines, as we continue to work towards real reform in our nation’s blood donation policy. Millions of people rely on blood donations for life-threatening medical situations, and our screening process should maximize the amount of available, safe blood. Screening blood should be based on up-to-date scientific knowledge and experience, not unfounded fear, generalizations and stereotypes. The policy remains discriminatory in nature, and continues its negative and stigmatizing effects.

Read the press release.