The Food and Drug Administration published a revised policy Monday that eases the United States’ outright ban on blood donations from men who have had sex with men — a policy instituted in the 1983 amidst the AIDS epidemic.
The new policy states that men who have been sexually active with another man can give blood — but only if they have not had sexual contact with a man for one year or more. That condition, in effect, maintains the ban for gay men who are even somewhat sexually active.
The FDA has posted the policy, known as guidance, here.
Coming after a 12-month process involving public comment, the new guidelines still leave critics saying that the FDA is needlessly stigmatizing gays and they lack scientific merit.
“The revised policy is still discriminatory,” said a statement from the National Gay Blood Drive, which advocated along with the American Civil Liberties Union, Gay Men’s Health Crisis, and others for a policy that approved or rejected donors based on their individual risk factors — not their sexual orientation.
“While many gay and bisexual men will be eligible to donate their blood and help save lives under this 12 month deferral, countless more will continue to be banned solely on the basis of their sexual orientation and without medical or scientific reasoning,” the statement said.
The rule also addresses transgender donors, saying the “FDA recommends that male or female gender be taken to be self-identified and self-reported.” But that change seems to clear up little for a policy that some blood banks have interpreted as a ban on all transgender donors.
One national blood donation company — facing two discrimination lawsuits from transgender women who were allegedly turned away — has argued in court records that previous FDA policy banned all transgender women. It is unclear that donors self-reporting their gender, as specified by the new guidance, clarifies that issue.
The FDA did not immediately reply to questions Monday from BuzzFeed News about whether all transgender people are banned from donating blood under the new guidelines.
The policy was proposed as a draft in May, with similar language to the final guidance released Monday. Responding to that draft, 82 members of Congress sent a letter to the FDA in July that said they were grateful the FDA was relaxing the ban but the one-year-deferral policy remained problematic.
“The draft’s proposed policy change would, in practice, leave the lifetime ban in place for the vast majority of [men who have sex with men], even those who are healthy. This serves to perpetuate the stereotype that all [men who have sex with men] pose a risk to the health of others. Both deferral policies as discriminatory and not based on science, and both approaches are unacceptable,” the Congressional Democrats members wrote in July.
The members of Congress also wrote they are “deeply concerned” that medical directors would be given discretion to turn away transgender donors.
“Transgender individuals often face discrimination, unfair stigma, and misunderstanding, including by some medical professionals,” the lawmakers said in the July letter. Leaving discretion to staff at blood banks turn “increases the chance that a transgender individual will be turned away, and set the stage for discrimination.”
The guidance is non-binding. However, blood donation centers tend to follow the guidance as policy, typically interpreting the guidance conservatively.
France announced in November that it would loosen its ban on blood donations from gay men starting in spring 2016. Men who have not had sex with men for one year can donate; men who have had sex with just one man or have not been sexually active could donate after four months.
Responding to the FDA’s final guidance, the Human Rights Campaign called it a step in the right direction that nonetheless fell short.
The LGBT advocacy group’s government affairs director, David Stacy, said in a statement, “It simply cannot be justified in light of current scientific research and updated blood screening technology. This new policy prevents men from donating life-saving blood based solely on their sexual orientation rather than actual risk to the blood supply.”