“Men who have sex with other men, at any time since 1977…are currently deferred as blood donors.”  This has been the Food and Drug Administration’s (FDA) current policy on blood donation toward any man who has had sexual contact with another man since 1977 (the year that the AIDS epidemic broke out in the United States), reflecting concern over the safety of the blood supply in the U.S., as “MSM (“men who have sex with men”) are, as a group, at increased risk for HIV, hepatitis B, and certain other infections that can be transmitted by transfusion.”

Though blood donation may not necessarily be a “right,” this policy might seem like outrageous discrimination which activists would immediately pounce upon like panthers.   Yet, surprisingly, this policy has been in effect since 1983, and, as it currently exists, since 1992.  This is also not a policy that is exclusive to the U.S.; according to a report issued by the Gay Men’s Health Crisis (GMHC), a non-profit AIDS service organization, Canada, France, and the Netherlands are among the other countries that currently prohibit MSM from donating blood.

The statistics offered by the Center for Disease Control (CDC) identifying MSM as a high-risk group for sexually –transmitted diseases (and, in particular, HIV) are also sound.  According to the CDC, MSM constitute 48% of all people living with HIV in the United States, account for 53% of all new HIV infections in the U.S., and are the only risk-group for whom the number of new HIV infections per year is increasing.  Although tests for HIV have become faster and more accurate, the FDA, in defense of its current policy, cites the “window period,” the span of time that elapses between infection and the ability to detect the presence of the HIV virus, as the ever-present Achilles’ heel of any HIV testing method.  This concern is legitimate, for tests that detect the presence of HIV antibodies (one of the cost-effective and most accessible HIV tests available) can have a window period of up to twelve weeks.  By openly admitting a population that is more susceptible to HIV and other transmittable diseases, the FDA would inevitably be increasing the chance of obtaining a disease from a blood donation.

But does the relatively high occurrence of HIV and other STDs in MSM stem from sexual preference itself or from unsafe sexual practices?   It is well-known and documented, for example, that sexual exclusivity and safe sexual practices (using condoms, e.g.) are very effective means of avoiding sexually-transmitted diseases for both homosexual and heterosexual couples.  Two HIV-negative men in a monogamous, sexually exclusive relationship, for example, have the same chance of contracting HIV as an HIV-negative heterosexual couple in the same situation – zero.  The problem, then, lies not with fact that MSM have sexual contact with men but with the fact that MSM are more likely to engage in unsafe sexual practices.  There are many studies, such as one in The Male Couple by David P. McWhirter and Andrew M. Mattison, that report that even MSM in committed relationships are more likely to have sexual interactions with multiple partners than heterosexual men.  There are many reasons cited for this trend; regardless, the problem with the FDA’s current policy is that it discriminates not upon the basis of risky sexual behavior but upon the basis of sexual preference, between which there is not necessarily a direct correlation.

This policy should not be regarded as inequitable in its intent, solely for the reason that MSM are, as a demographic grouping, at the highest risk of contracting HIV and other diseases that can be obtained from a blood transfusion.  Nevertheless, to exclude an individual based solely upon his/her sexual orientation at a federal level is discrimination and goes against the rights we fundamentally stand for as a liberal, democratic society.  The safety of the blood supply needs to be the top priority, but that does not mean that such classification is required to achieve this goal.

The GMHC calls for two alternative possibilities to the current policy.  The first of these is to institute a temporary deferral period instead of a permanent deferral.  According to this policy, a man would be temporarily barred from donating blood if he had engaged in sexual activity with another man during a pre-determined length of time known as the “deferral period.”  Although various lengths have been proposed for this period, the span of time would not matter so long as it exceeds the most cautious estimate of the window period.  The other alternative would be to revise deferral periods for all donors based on “objective risk factors” either by asking men who identify themselves as MSM additional questions about their sexual practices or by devising a new set of questions that are gender-neutral.

Both of these alternatives seem perfectly feasible and would allow the FDA to both preserve the integrity of the blood supply and prevent discrimination on the basis of anything except risky sexual practices.   There is always the potential danger that donors could lie when responding to questions about their sexual activity, but there is no reason to believe that MSM at a high risk of HIV are more likely to lie than heterosexual men in the same situation.  Although opinions on these behavior-based donation restrictions differ greatly, even the strictest standards for MSM seeking to contribute blood would be preferable to a permanent deferral, especially at a time such as now when shortages threaten to render blood bands unable to meet the demand of those needing help.