By: Candelario Saldana
On October 2, 2017, America woke up to news of yet another tragedy: a shooting in Las Vegas[1]that left fifty-nine people dead and hundreds injured.[2]The following day, Las Vegas Mayor Carolyn Goodman urged the community to donate blood to aid victims.[3]Answering her call, residents rushed to donation centers and patiently waited in block-long lines for hours.[4]However, due to the Food and Drug Administration’s (“FDA”) policy, Recommendations for the Prevention of Human Immunodeficiency Virus Transmission by Blood and Blood Products, banning men who have sex with men from donating blood,[5]these donation centers were forced to turn away many healthy members of the LGBTQ+ community,[6]similar to what took place after the Orlando PULSE shooting[7], and most recently after the Stoneman Douglas High School shooting.
In 1983, the onset of the AIDS crisis, the FDA implemented a lifetime ban on blood donations from men who had ever had sex with another man.[8] Although little was known about the disease in the early 80’s, HIV was believed to be a gay disease.[9]In 2014, the FDA announced its intentions to make a change to its policy. LGBTQ+ organizations called for a total elimination of the ban.[10]To their dismay, in December 2015, the FDA simply shortened the length of the ban.[11]The new policy prohibits men from donating blood if they have had sex with another man within the last twelve months.[12]The FDA claims that it considered alternative criteria instead of the twelve-month deferral.[13]Ultimately, the FDA decided to implement the deferral due to concerns with the reliability of self-reports of monogamy,[14]along with statistics demonstrating that men who have had sex with another man accounted for 70% of new HIV infections in the U.S.[15] However, even though HIV rates remain high among homosexuals, there are effective, non-discriminatory alternatives to addressing the FDA’s concerns. For instance, prescreening measures such as using nucleic acid tests, which detect HIV within ten days of being infected,[16]and individual risk factor assessments can ensure safe blood donations.[17]
Although there has not been a challenge to the ban in federal courts, in light of recent court decisions addressing other discriminatory practices by states and the federal government, it might be time to challenge the FDA’s ban. Starting with Romer v. Evansin 1996,[18]the Supreme Court has accepted that homosexuals as a class fall under the protection of the Equal Protection Clause. In Lawrence v. Texas, the Court held that having laws criminalizing same-sex intimacy demeans homosexuals and are therefore unconstitutional.[19]In United States v. Windsorand Obergefell v. Hodges, the Court held that marriage laws that defined marriage exclusively for heterosexuals were also unconstitutional.[20]The Court has also clearly stated that states cannot “engage in—and have the authority to prohibit—discriminatory conduct that ‘demeans or stigmatizes’ LGBT people.”[21]Therefore, one could argue that other laws, regulations or policies—such as the blood ban—that either on their face discriminate against homosexuals or have the effect of discriminating against them could possibly be found unconstitutional if an Equal Protection analysis was applied.[22]
One of the challenges with using an Equal Protection argument, however, is that the ban does not specially name homosexuals or bisexual men.[23]Instead of being discriminatory against a class that the Supreme Court has recognized as deserving Equal Protection, the ban instead ban’s men who have had sex with men in the past 12 months, it prohibits conduct instead of identity. Therefore, the policy might not be found to facially target a protected class. However, the Court has held that laws that are facially neutral but have a discriminatory effect or impact a protected class can still be analyzed using an Equal Protection lens.[24]Here, the ban claims to target men who have sex with men; however, the targeted conduct is closely associated to gay men,[25]gay men by definition are men who have sex with men. The history of the ban, stemming from the AIDS crisis in the 80’s also has a history that implicates that the policy is aimed at gay men.[26]However, even if courts do not find that the intent was to discriminate, it is quite likely that a court would find that the effect is discriminatory. Furthermore, the effect is not only discriminatory, but there are other ways to achieve the legitimate interest of keeping the blood donations safe without being discriminatory towards homosexual men.
It is time that men like myself—gay and willing to donate—are not turned away from blood donation centers simply because we have sex with other men. After every tragedy hundreds if not thousands of gay men are forced to sit on the sidelines. Although they are trying to perform a selfless act, we are discriminated against because of the discriminatory policy implemented by the FDA. Although we are HIV-negative and willing to donate, we are not allowed, even when trying to help our own people, it’s time to say #EndtheGayBlooodBan.
[1]SeeLas Vegas shooting what we know, CNN (Oct. 3, 2017, 8:44 AM), http://www.cnn.com/2017/10/02/us/las-vegas-shooting-what-we-know/index.html; Susan Miller, Las Vegas shooting now tops list of worst mass shootings in U.S. history, CNN (Oct. 2, 2017, 6:12 PM), https://www.usatoday.com/story/news/2017/10/02/worst-mass-shootings-u-s-history/722254001/.
[2]Las Vegas shooting updates: Portraits of the victims emerge, L.A. Times (Oct. 5, 2017, 9:45 AM), http://www.latimes.com/nation/la-las-vegas-shooting-live-updates-death-toll-rises-to-59-investigators-1506983486-htmlstory.html.
[3]Sarah Glover, ‘Please Donate Blood’: Las Vegas Mayor Following Mass Shooting, NBC L.A. (Oct. 3, 2017), https://www.nbclosangeles.com/news/national-international/Las-Vegas-Mayor-Concert-Shooting-Donate-Blood-449080253.html?_osource=taboola-recirc(internal quotations omitted).
[4]SeeJessie Bekker, et. al, Donors overwhelm blood banks after Las Vegas Strip massacre, Las Vegas Review-Journal (Oct. 2, 2107, 12:49 PM), https://www.reviewjournal.com/local/the-strip/donors-overwhelm-blood-banks-after-las-vegas-strip-massacre/; Gene Haagenson, Response at blood centers in the Valley, ABC 30 (Oct. 2, 2017), http://abc30.com/health/response-at-blood-centers-in-the-valley/2481201/.
[5]U.S. Food and Drug Admin., Revised Recommendations for Reducing the Risk of Human Immunodeficiency Virus Transmission by Blood and Blood Products – Questions and Answers, https://www.fda.gov/biologicsbloodvaccines/bloodbloodproducts/questionsaboutblood/ucm108186.htm(last visited Oct. 6, 2017); Revised Recommendations for Reducing the Risk of Human Immunodeficiency Virus Transmission by Blood and Blood Products[hereinafter Revised Recommendations], Dec. 2015,
[6]Adam Eickmeyer, Keeping a Finger on the PULSE of Blood Donation Policy After Orlando, Health Affairs Blog (Sept. 1, 2016), http://healthaffairs.org/blog/2016/09/01/keeping-a-finger-on-the-pulse-of-blood-donation-policy-after-orlando/; Sheena McKenzie, Gay men outraged over continued ban on blood donation, CNN, (June 14, 2016, 4:10 PM), http://www.cnn.com/2016/06/13/health/orlando-shooting-gay-men-donate-blood/index.html; Sylvia Cunningham, Florida Man Feels ‘Helpless’ After Failed Blood Donation Attempt, NBC News, (Feb. 9, 2017, 6:09 PM), https://www.nbcnews.com/feature/nbc-out/florida-man-feels-helpless-after-turned-away-donating-blood-n591346.
[7]Adam Eickmeyer, Keeping a Finger on the PULSE of Blood Donation Policy After Orlando, Health Affairs Blog (Sept. 1, 2016), http://healthaffairs.org/blog/2016/09/01/keeping-a-finger-on-the-pulse-of-blood-donation-policy-after-orlando/; Sheena McKenzie, Gay men outraged over continued ban on blood donation, CNN, (June 14, 2016, 4:10 PM), http://www.cnn.com/2016/06/13/health/orlando-shooting-gay-men-donate-blood/index.html; Sylvia Cunningham, Florida Man Feels ‘Helpless’ After Failed Blood Donation Attempt, NBC News, (Feb. 9, 2017, 6:09 PM), https://www.nbcnews.com/feature/nbc-out/florida-man-feels-helpless-after-turned-away-donating-blood-n591346.
[8]Mathew L. Morrison, Note, Bad Blood: An Examination of the Constitutional Deficiencies of the FDA’s “Gay Blood Ban”, 99 Minn. L. Rev. 2363, 2364(2015).
[9]Stephanie Gallman, FDA lifts lifetime ban on gay men donating blood, CNN (Dec. 21, 2017, 8:28 PM), http://www.cnn.com/2015/12/21/health/fda-gay-men-blood-donation-changes/index.html.
[10]Sabrina Tavernise, F.D.A. Easing Ban on Gays, to Let Some Give Blood, N.Y. Times (Dec. 23, 2014), https://www.nytimes.com/2014/12/24/health/fda-lifting-ban-on-gay-blood-donors.html; see alsoFDA Blood Donation Ban Change Still Unacceptable[hereinafter HRC Press Release] , Human Rights Campaign (May 12, 2015), https://www.hrc.org/press/fda-blood-donation-ban-change-still-unacceptable.
[11]SeeAmanda Terkel, The FDA’s Blood Donor Policy Is Still Homophobic: Gay men in sexually active monogamous relationships will still be banned, Huffpost (Dec. 21, 2015, 1:34 PM), https://www.huffingtonpost.com/entry/fda-gay-blood-ban_us_567832cde4b014efe0d61e96; AIDS United, 1-Year Blood Donation Deferral Policy a Step in the Right Direction, Still Needlessly Discriminates Against Gay and Bisexual Men, https://www.aidsunited.org/news/Default.aspx?id=1120(“While removing the lifetime ban is a step forward, even the one-year deferral continues to perpetuate discrimination against gay and bisexual men.”) (last visited Oct. 6, 2017).
[12]Terkel, supra note 11; see alsoRevised Recommendations,supra note 5, at 11 (“FDA concludes that the available evidence most strongly supports a change from the indefinite deferral to a one-year blood donor deferral policy for MSM . . ..”).
[13]Susan Scutti, Lawmakers urge FDA to lift blood ban for gay men, CNN (June 28, 2016, 5:32 PM), http://www.cnn.com/2016/06/28/health/fda-gay-men-blood-donation/index.html.
[14]Id.
[15]HIV Among Gay and Bisexual Men, Center for Disease Control and Prevention (CDC), https://www.cdc.gov/hiv/group/msm/index.html(last visited Oct. 14, 2017).
[16]HIV Testing, CDC, https://www.cdc.gov/hiv/testing/index.html(last visted Oct. 14, 2017).
[17]Keeping Blood Transfusions Safe: FDA’s Multi-Layered Protections for Donated Blood, FDA, https://www.fda.gov/BiologicalBloodVaccines/SafetyAvailablity/BloodSafety/ucm095522.htm(last visited Oct. 15, 2017).
[18]Romer v. Evans, 517 U.S. 620, 631 (1996) (“[I]f a law neither burdens a fundamental right nor targets a suspect class, [the court] will uphold the legislative classification so long as it bears a rational relation to some legitimate end.”)
[19]Lawrence v. Texas,539 U.S. 558, 575 (2003).
[20]See generally United States v. Windsor, 133 S. Ct. 2675 (striking down a key portion of the Defense of Marriage Act (DOMA), because it discriminated against homosexuals as a class); see alsoObergefell v. Hodges, 135 S. Ct. 2584 (finding that law prohibiting same-sex couples from marrying violated a fundamental right, and discriminated against homosexuals as a class).
[21]Brief of Amici CuriaeServices and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders and American Society on Aging in Support of Respondents at 5, Masterpiece Cakeshop v. Colorado Civil Rights Com’n,137 S. Ct. 2290 (2017).
[22]SeeMorrison, supra note 8, at 2389.
[23]Id.
[24]Id.at 2390 (referencing Yick Wo v. Hopkins118 U.S. 356 (1886) which held that although a law that is facially neutral, the law could still impose “purposeful discrimination if it is administered in a discriminatory way”).
[25]Dwayne J. Bensing, Comment, Science or Stigma: Potential Challenges to the FDA’s Ban on Gay Blood, 14 Journal of Constitutional Law 485, 498-99 (Dec. 2011).
[26]SeeMorrison, supranote 8, at 2390.
