FDA to Maintain Discriminatory Blood Ban; Impact on Trans People Still Unclear
The Food and Drug Administration (FDA) today proposed to narrow, but not eliminate, its unsound and discriminatory policy of prohibiting blood donation by anyone deemed “men who have sex with men” or MSM. Instead of a lifetime ban of blood donation by “MSM” or anyone who has had sex with “MSM,” the FDA has proposed to shorten the period of the ban to one year since donors have had “sex with men.” This proposal, like the existing ban, is based on unfounded assumptions rather than medical science and has been sharply criticized by HIV and LGBT advocates and medical authorities. The new FDA proposal also states that who is “MSM” will be determined based on self-reported gender. However, the FDA’s proposal also confusingly states that blood collection agencies “may exercise discretion” when blood donors have transitioned.
Specifically, the proposed policy states that “male or female gender is taken to be self-identified and self-reported.” However, it goes on to say that, “In instances where a donor has asserted a change in gender identification, medical directors may exercise discretion with regard to donor eligibility.” While possibly intended only to allow clarifying questions when a previous blood donor has transitioned, this language could encourage organizations to believe they may turn away any trans person. Up to now, trans people of all genders have frequently been turned away, and there are multiple pending lawsuits against blood collection organizations based on such discrimination.
Generally, the FDA’s proposal means that if you identify yourself as male and report having a male sex partner in the last year, you will very likely be “deferred,” i.e. banned from donating blood. The “deferral” lasts until you report that you have not had a male sex partner in the last year. (The FDA defines “sex” as oral, vaginal, or anal, with or without protection.) Transgender women and those with other gender identities are not generally banned, based on their self-reported gender. However, a trans person of any gender can still be excluded based on having sex with a man who has had sex with men, or if a blood collection agency believes—probably wrongly—that they simply have discretion to ban them.
NCTE Director of Policy Harper Jean Tobin said, “Regardless of how it is applied, the ‘MSM’ blood ban is still an unsound and stigmatizing policy that is not based on how HIV transmission actually works. It must be replaced with a policy that is based on the actual risks involved in specific activities—not identities. And based on currently used tests, ‘deferral’ periods could be as short as 45 days rather than a year.”
NCTE and other LGBT and HIV advocates will be filing comments strongly urging the FDA to adopt a new, science-based approach.