The Expressive Dimension of Donor Deferral

By Dov Fox

The Guardian and L.A. Times are the latest major news organizations to decry trans-Atlantic restrictions on blood donation by men who have sex with men (MSM). The case against such categorical bans has been reignited by an influential piece that Bill of Health editor Glenn Cohen recently published with co-authors Jeremy Feigenbaum and Eli Adashi in the Journal of the American Medical Association. Cohen, Feigenbaum, and Adashi make a powerful case why sexual orientation should be just one component among others used to assess the risk that blood donors might spread HIV.[i]

But their argument elides exactly what is—and isn’t—wrong with excluding men who have sex with men from donating blood. At times they suggest the longstanding U.S. ban reflects “outdated homophobic perceptions.” Yet they acknowledge that it was “well-intentioned and guided by a need to protect the integrity of the national blood supply.” Indeed, the Food and Drug Administration that enacted the lifetime MSM ban solicited guidance from the National Gay Task Force whose recommendations were adopted into Red Cross blood collection procedures.[ii] It’s unlikely the policy was motivated by animus as opposed to concern for public health.

Elsewhere, the authors imply the policy’s chief offense is that it deprives MSM of a crucial “civic opportunity.” But giving blood, even if it shares the life-saving potential of military service and registration as an organ donor, is not typically regarded as a duty of citizenship tantamount to voting or jury service.[iii] So it’s not its effects on those it excludes that makes the donor ban so bad.

The best reason to let low-risk gay men give blood lies in the demeaning message that excluding them expresses, what I’ve called the expressive dimension of donor deferral

The authors come closest to articulating this deeper concern when they cite a recent appellate court’s decision that state action may “neither send nor reinforce messages of stigma or second-class status” on the basis of sexual orientation.[iv] That’s just what the categorical ban on MSM blood donation does. It imparts the idea that even MSM who practice safe sex and have monogamous relationships should be treated as if they’re likely to have a disease bound up with perceptions of promiscuity and prostitution, contagion and shame.[v]

Distinguishing this expressivist objection from more familiar concerns about intentions and effects is more than an academic exercise. It clarifies the moral stakes of donor exclusion. And it reveals a better argument than those that have failed before to explain why the policy demands strong justification for why a categorical ban–rather than more modest and refined measures that Cohen and colleagues propose–most fittingly preserves public health from the ravages of a debilitating disease.

[i] Cohen IG, Feigenbaum J, Adashi, EY, Reconsideration of the lifetime ban on blood donation by men who have sex with men, JAMA. 2014;312(4):337-38.

[ii] Bayer R (1989), Private acts, social consequences: AIDS and the politics of public health, 82–83. New York, NY: Free Press.

[iii] Charbonneau J, Y-Lang Tran, N, The symbolic roots of blood donation, Transfusion. 2013;53(S5):172S–179S.

[iv] SmithKline Beecham Corporation v. Abbott Laboratories, 740 F3d 471. January 21, 2014. Accessed July 29, 2014.

[v] Liamputtong P (2013), Stigma, discrimination, and HIV/AIDS: An Introduction, 4–5. New York, NY: Springer.

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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.