When the US Food & Drug Administration (FDA) announced plans in December to change — but not repeal — its ban on gay and bisexual men donating blood, the agency was quickly criticized for continuing to discriminate.
But little attention was paid to the ban's effects on the transgender community, which is also affected by FDA policies that recognize only the birth gender of possible donors. Now, trans activists are adding their disapproval to the chorus of voices urging the FDA to rethink its blood donation policies completely as the public commentary phase of the decision-making process begins.
Following a recommendation from the Health and Human Services Department, the FDA announced in December that it was proposing a change to its ban on gay donors. The current policy prohibits any man who has had sex with another man (MSM) since 1977 from donating blood. The new policy would ban only men who have had sex with a man during the past year. The FDA said it would publish a draft of the policy early in 2015 followed by a period of public comment before making its final decision.
Gay rights advocates, including the Human Rights Campaign and the Gay Men's Health Crisis (GMHC), criticized the FDA's proposal, saying a rule that demands a year of celibacy still effectively bans almost all gay men from donating, reinforces an outdated stereotype that HIV is a gay disease, and is not backed up by science. GMHC said that all donors — men and women, gay or straight — should be evaluated on their individual risk factors.
But the trans community is now contesting another portion of the proposed policy. Under both the current FDA regulations and proposed changes, all donors are evaluated based on the gender they were at birth. If someone was born male and later transitioned to female, they are still considered a male by the FDA and blood banks, the FDA told VICE News. If that person has had sex with a man — even through heterosexual sex after their transition — they are banned from donating blood.
In the opposite case, where an individual born female transitions to male, that person will always be considered a woman by the FDA in regard to blood donation. So even if they transition to male and have sex with a man, they will be allowed to donate blood. In addition to the inconsistency, the FDA ignores the new legal identities of trans individuals, critics say.
The FDA said in an email to VICE News that the ban is "based on well-documented observations of much higher rates of transmissible diseases among MSM than in the non-MSM population. With regard to the FDA's door deferral policy for MSM, it is recommended that sex as determined at birth be used for the purpose of determining donor eligibility."
Mara Kiesling, executive director of the National Center for Transgender Equality, called the existing ban "a BS policy based on fear with total disregard for science," and said that the FDA didn't expect their announcement to be followed by "people on the ground wanting to figure out what that meant for trans people."
Kiesling said the FDA's basic problem is that it hasn't considered trans people at all while creating its policies, instead just lumping them in with the gay population. When the agency announced possible changes to the ban in December, she added, it was clear the FDA would have to develop a policy that also addresses trans donors.
"There's always been a conflation between gay men and trans people," Kiesling said. "The blood people used to conflate trans people as some kind of gay variety, while trans men were just invisible. This time when they announced their half-assed and still-unscientific policy they got questions and pushback. There was no way now the trans community was going to allow them to make us invisible on this policy or conflate us with gay men."
Kiesling said the National Center for Trans Equality is seeking a meeting with the policymakers at the FDA to get clarification on the agency's views, and to share their own ideas for new blood donor rules.
"There's nothing inherent in our people that should prevent us from donating blood or blood products, nothing about us that should ban us. We are not gay men," Kiesling said, noting that she also disagrees with the blanket ban on gay men donating blood.
I. Glenn Cohen, co-director of Harvard Law School's Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, told VICE News that all blood samples are rigorously tested "no matter what," and that the FDA should move toward an individualized assessment for risky behavior.
"It took a long time for [the FDA] to move to this, the question is whether the pressure will continue to be on them," Cohen said, explaining that the move does buy the agency time. "It's reasonable for them to say, 'Let's evaluate what happens with this move first then decide.' But I hope gay rights activists and the public health community will continue to push them."
Tara Goodin, spokeswoman for the FDA, noted that the policies are merely recommendations to blood banks and centers, and each individual facility has the ultimate say on who is allowed to donate. She also emphasized the importance of the upcoming public comment period.
"We'd encourage people who are interested in transgender [issues] to comment on that so we could get more detail," Goodin said. "The FDA encourages all stakeholders, including those concerned about transgender issues, to take the opportunity to provide comments on the draft guidance."
Follow Colleen Curry on Twitter: @currycolleen
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