End the Ban on Blood Donation by Gay Men

By Dov Fox

86 members of the U.S. Congress have requested an end to the federal policy that prevents men who have had sex with men from giving blood. Advances in blood screening technology have discredited the medical justification for this exclusion. And our country’s current critical blood shortage makes it dangerous for public health.

The antidiscrimination objection is more complicated. The policy wasn’t born of illicit motivations and doesn’t seriously disadvantage gay men. That it doesn’t reflect bad intentions or effects, does not, however, vindicate the policy on equality grounds. The blanket exclusion, independent of individual risk levels, reflects a disparaging stereotype that gay men are sexually promiscuous or use illegal drugs, I argued in an op-ed last week. I have elsewhere called this objectionable social meaning the expressive dimension of donor deferral.

Secretary Sebelius should answer the congressional plea to end our exclusionary blood donation policy. In the meantime, those who already enjoy the opportunity to help save lives can serve the causes of public health and social equality by making an appointment to give today.

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This entry was posted in Dov Fox, FDA, HIV/AIDS, Medical Safety, Population-Level Bioethics, Public Health, Scientific Evidence by Dov Fox. Bookmark the permalink.

About Dov Fox

Dov Fox is Professor of Law and founding Faculty Director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law. He has published dozens of articles in leading journals of law and medical ethics, most recently “Reproductive Negligence” in 117 Columbia Law Review 149 (2017). His current book project, Birth Rights and Wrongs, is under contract with Oxford University Press. His work has been featured in CNN, ABC, NPR, BBC, Reuter’s, Bloomberg, the Boston Globe, and the Washington Post. Fox is a regular columnist for The Huffington Post and contributor to the Bill of Health blog. He also serves on the advisory boards of the American Constitution Society and Appellate Defenders, the non-profit law firm that administers all appointed counsel for indigent defendants in California's Fourth Appellate District. Prior to teaching, Fox served as a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. He has also worked at the law firm of Wachtell, Lipton, Rosen & Katz; the consulting firm of McKinsey & Company; and the Civil Appellate Staff at the U.S. Department of Justice. Fox was awarded a Rhodes Scholarship to attend Oxford University, where he earned his DPhil and then received a Soros Fellowship for New Americans to attend Yale Law School, where he served as projects editor for the Yale Law Journal and all three years was awarded the prize for best student paper in law and the sciences.

3 thoughts on “End the Ban on Blood Donation by Gay Men

  1. Hi Dov,

    Given that, in your words, the “blanket exclusion . . . reflects a disparaging stereotype,” how can we be so certain that the policy was not born of illicit motivations? (That is, it could be overdetermined, but the history of public health is absolutely rife with examples in which forms of racism, sexism, and other forms of stigmatization & discrimination converge with defensible public health goals to produce given policies).

    I take your point that we need not presume the existence of such motivations to condemn the policy, and I also like the perhaps implied point — which can never be stated enough, IMO — that language is a social phenomenon whose effects and meanings are neither contingent on nor limited to the intentions of the utterer. But these considerations do not permit us to rule out the possibility that in fact the exclusionary policy was at least in part driven by illicit motivations of the structural and institutional kind.

    I think the latter question is really an empirical historical query. On a similarly related exclusion, Charlene Galaraneau documents that the ban on Haitian-American donation of policy almost certainly reflected invidious American stereotypes of Haitians: http://phe.oxfordjournals.org/content/early/2010/09/14/phe.phq020.full

    What do you think?

  2. Hi Dan,

    Thanks for your thoughtful reply, which seems just right to me. I was too quick to the extent I suggested in my short post that we can be certain or very confident that some measure of bigotry or indifference did not animate the troubling ban on blood donation by men who have had sex with men. The larger points you took away, which the hyperlinked op-ed and essay discuss at greater length, are that bad motives do not exhaust the reasons to object on antidiscimination grounds, and that we should resist the temptation to assume bad motives from the fact of exclusion.

    That the policy excludes against a cultural background of fear and intolerance, I take you to suggest, is one among other possible clues about intent, that include, for example, what health officials said about the policy, the plausibility of alternative ways to account for it, and how well that policy, as compared to other available measures serves the asserted public health rationale based on the best medical understandings at the time. These are the same kinds of questions that lawyers and judges ask to get at legislative intent in statutory interpretation more generally.

    I haven’t in the blood donation context come across strong evidence of discriminatory intent behind the exclusion of gay men, of the kind that Charlene Galaraneau uncovers with respect to the ban on giving by Hatian-Americans. If such evidence surfaces in this context too, that would certainly inform any determination of illicit intent. I’d be very interested if readers have tips! Independent of this inquiry into intention, though, the expressive harms that lifetime exclusion incurs without medical justification is reason enough, I believe, to reject the policy.


  3. Hi Dov,

    Agree entirely all the way around. I particularly like your second paragraph, and deem it especially important when discussing issues of discrimination and stigmatization. These are social phenomena that have social lives which shape individual interactions from the outside in, so they are not internal to the specific intentions and motivations of a utterer. In my view, Americans have a particularly difficult time apprehending the significance of the difference between individual acts of discrimination and structural kinds, and of the ways in which structural discrimination can invisibly shape individual transactions.

    Ok, babbling now, but again, I agree entirely with your response. Great post!

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