June 10, 2010
WASHINGTON – The American Civil Liberties Union submitted comments to the Advisory Committee on Blood Safety and Availability urging the committee to reassess the Food and Drug Administration’s policy (FDA) on blood donation by gay and bisexual men. The FDA policy, enacted in 1985, recommends that men who have had sex with another man even one time since 1977 should be banned from donating blood. In its comments, the ACLU recommended that the committee base its policy on factual evidence, rather than sexual orientation.
“The FDA should be basing its policy on facts and not stereotypes,” said Laura W. Murphy, Director of the ACLU Washington Legislative Office. “If gay and bisexual donors can be screened for donation without causing risk to our nation’s blood supply, they should be. The FDA’s policy wrongly implies the mere fact of sexual activity with another man poses a risk of HIV transmission. The advisory committee must review its policy and follow science in this issue. To do otherwise would be discriminatory and unconstitutional.”
Gay and bisexual men, intravenous drug users, people who have had sex for money and people who have tested positive for HIV disease are currently the only groups of people banned from donating blood. Though this policy excludes all gay and bisexual men regardless of their individual sexual histories or HIV risk, other individuals who are also at increased risk for HIV, including people who have heterosexual sex with someone who they know to be HIV positive or people who have had sex with a commercial sex worker, are prevented from donating blood for only a year.
While there is no constitutional right to donate blood, government policy regulating the blood donation field must not discriminate on the basis of sexual orientation by adopting differing standards for conduct that poses similar risks, based solely on the identity of those engaging in such conduct. In other words, gay and bisexual men cannot constitutionally be singled out for differential treatment solely because of their sexual relationships.
"Eligibility for donating blood should be based on scientific evidence, not stigmatizing and outdated stereotypes,” said James Esseks, Director of the ACLU LGBT & AIDS Project. “We know that many straight people have HIV. If the existing screening methods are sufficient to protect the blood supply from straight people with HIV, then the government needs a really good reason for having a different rule for gay and bisexual men. It's not clear that it does."