Salt in the wound: Orlando and the FDA gay blood policy
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Forty-nine people were killed in Orlando for being in a gay club. Amidst the confusion, anger, and grief that followed, the gay community experienced another blow: hundreds of volunteers lovingly lined up to donate blood, but gay and bisexual men were prohibited from giving because of FDA blood donation guidelines.

Put simply, under a policy promoted by the United States government, gay men are prevented from donating blood that might save a friend, lover, or stranger just because they are gay.

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Despite having written on and challenged the FDA’s “gay blood ban”, I never felt the full impact of its discrimination or the sense of powerlessness it imparts until Orlando. This policy is antiquated, medically unnecessary, and discriminatory. It is time for the FDA to shift to a policy that focuses on specific risky behavior, rather than groups of people, and to allow gay and bisexual men to donate.  

Origins of the FDA Policy

The FDA’s policy on blood donations from men who have sex with men (MSM) was an emergency response to the HIV/AIDS epidemic, first implemented in 1983. Amid uncertainty and crisis, the policy was meant to exclude from the blood supply donors who were high-risk for HIV, notably gay men. In Orlando, more than three decades later, during another period of uncertainty and crisis, the FDA’s policy is preventing that same group from donating to the wounded members of its own community and to other attack victims.

In 2015 the FDA revised its original policy, which banned MSM from donating for life, to one that defers a MSM donor for twelve months from the last time he had sex with a man. This policy, which is in effect today, leaves MSM with three choices: do not donate, lie about their sexual history, or abstain from sex for twelve months. None of these options help the blood supply and all of them are discriminatory and damaging to LGBTQ identity.

The FDA’s Policy is Overly Broad and Harmful

The FDA uses MSM as a categorical proxy for HIV-risk instead of focusing on actual risk factors. MSM describes behavior perceived as being high-risk for HIV transmission: sex between men. By avoiding the term “gay,” MSM is meant to capture both members of the gay community and men who engage in sex with other men but do not identify as gay. Still, in application, MSM is nearly synonymous with gay or bisexual. 

But being gay itself does not make one inherently susceptible to contracting HIV and by focusing on MSM as a category and not specific risk factors, the FDA unnecessarily shrinks the donor pool and perpetuates an association between gays and HIV/AIDS. It is true that the highest rates of new HIV infections occur in the gay community and that some MSM are high-risk donors because they engage in certain high-risk behaviors, but by requiring a deferral based solely on gay sex, the FDA implies that gay sex is inherently risky. Not all MSM pose a risk and zero-risk donors can be easily identified. Where is the risk in sex between two men who have been in a monogamous relationship for years and know that they are HIV-negative? There may be risk in a donor who has multiple sexual partners of unknown HIV status and without protection, but that is as true for MSM as it is for non-MSM.

The FDA is supposed to base its policies on science, but science does not justify a twelve-month deferral period. Medical advancements have dramatically improved testing and virus detection since the 1980s. A better understanding of HIV/AIDS and drugs like PrEP have improved public health and sex education. Since the window period for viral detection has contracted to a matter of weeks, there is greater certainty in one’s own status and no need for long deferral periods.

Let’s not forget, too, that all blood is tested after donation. Italy has adopted a similar process of behavior-based screening questions and post-donation testing and has not seen an increase in transfusion based HIV transmission.

Policymakers Can Fix this Problem

The FDA’s 2015 revised blood donation guidelines were a disappointment: they did nothing to address the old policy’s discriminatory nature, as healthy, sexually active gay and bisexual men still cannot donate. An improved policy would focus on actual risk factors associated with HIV transmission, such as: number of sexual partners, HIV status of those partners, engagement in anal sex, use of protection during intercourse, and frequency of testing. This type of screening would flag all high-risk donors, not just MSM, while allowing low-risk MSM to donate. 

Healing from the attack in Orlando will take time. But in the weeks to come as we remember the 49 victims and say their names, we also need to call on both Congress and the executive branch – the president, HHS, and the FDA – to change this policy now. Don’t let naysayer policymakers hide behind science when science isn’t preventing us from having an equitable and pro-health donor policy.

Berkman is a joint JD and Master of Public Administration candidate at New York University and will graduate in 2017. He is gay, HIV-negative, and cannot donate.