The Discriminatory Policies against Gay and Bisexual Men that are Fueling the National Blood Crisis

Jason Orringer

Associate Editor

Loyola University Chicago School of Law, JD 2023

This past January, the American Red Cross announced that the United States was facing its worst blood shortage in over a decade, posing a significant risk to patient care and causing doctors to make difficult decisions in determining which patients should be prioritized for blood transfusions given the dwindling supply. The staggering decrease in blood and platelet donations can be attributed to the global COVID-19 pandemic driving up the need for donations and the hesitancy people have had to leave their homes over the past two years. Even in this desperate time of need for blood, gay and bisexual men in America are still prevented from donating because of discrimination.

A history of discrimination

In 1983, a lifetime ban was imposed on gay men from having the ability to donate blood, including all men who had sex with men since 1977, the year in which the world become aware of the HIV/AIDS virus. This ban was imposed at a time where the world did not understand HIV/AIDS and there was extremely limited testing technology and resources to scan for the virus. It was not until more than thirty years later when the U.S. Food and Drug Administration (FDA) removed the lifetime ban and enacted a twelve-month deferral period in 2015, meaning that gay or bisexual men would have to abstain from sex for a year before being eligible to donate blood. Five years later in April of 2020 at the onset of the COVID-19 pandemic, the FDA abruptly shortened that deferral period to three months amid the start of blood shortages.

The LGBTQ+ community has a long and dark history of dealing with discrimination, a significant part of which stemmed from the HIV/AIDS crisis in the 1980’s. All of these restrictions stem from a deeply-rooted fear that sexual activity among gay or bisexual men may result in HIV. Even though the FDA tests every single blood donation for a long list of disease, including HIV, they have kept these discriminatory rules in place because they state that “gay and bisexual men have a higher incidence of disease” and subsequently eliminate them from the pool of eligibility immediately without even giving them a chance to have their blood tested at all.

Putting in the work

The LGBTQ+ community has not only become incredibly cognizant and vigilant when it comes to testing and being aware of an individual’s HIV status, but the rates of HIV amongst gay and bisexual men have seen a steady decline in recent years. Furthermore, there are now a variety of medicines to prevent HIV if exposed and there is HIV antiviral therapy that suppresses the virus, if contracted, that essentially eliminates the risk of an HIV-positive person transferring the virus to a HIV-negative partner during sex. Even with all of these medical advancements and the widespread awareness of HIV prevention and treatment, sexually active gay and bisexual men are still not allowed to donate blood without abstaining from sex for three months. Yet, ironically, a woman who has unprotected sex with multiple partners over the same three-month time frame and has no knowledge of their personal histories are allowed to remain in the donor pool. Even more ironically, a study conducted in England found that, for the first time ever, HIV now infects more heterosexual people than gay or bisexual men..

The call for change

The LGBTQ+ community in the United States has been vigilant at testing, preventing, and treating HIV and has been vocal in trying to put an end to these discriminatory practices of preventing blood donations. After the blood shortage was announced by the American Red Cross in January, a group of twenty-two U.S. senators sent a letter urging the FDA to scrap these ignorant restrictions. The American Medical Association recently stated in a press release that the lifetime-ban on blood donations for men who have sex with men is discriminatory and not based on sound science. They called for federal policy changes to be made so that bans or deferrals are applied to donors according to their individual level of risk and not based on their sexual orientation alone by evaluating all donors equally. The Biden Administration recently acknowledged just how painful the legacy of bans on blood donation to the LGBTQ+ community and that the President is committed to ensuring that this policy be based on science, not fiction or stigma. While the acknowledgement is nice, action is still needed on the part of the FDA to permanently revoke these discriminatory bans on blood donation and to instead evaluate all donors equally.