Culhane: It’s time to end the gay blood ban

By John Culhane,
Professor of Law,
Widener University

The recent story about the push for a Ronald Reagan Day in California has caused justifiable outrage in the LGBT community. Words failed “the Great Communicator” when it came to the devastation of AIDS.

Not until 1986 did he even speak the scourge’s name.

But the more compelling story here isn’t about inaction, but about the actions the Reagan Administration took: steps that made the situation much worse than it needed to be.

First, they effectively muzzled public health champion and Surgeon General C. Everett Koop. Although the 93-year-old Koop is a complex figure who today is perhaps best known for his “medic alert” ads, he fought strenuously but in vain for several years to promote good public education about HIV. (He finally broke through in 1986 and issued a thorough report.)

While Koop was being silenced, Reagan’s Food and Drug Administration was putting into place a restriction on gay blood donors that haunts us some twenty-seven years later. In 1983, the FDA created its well-known “MSM exclusion” – a lifetime ban against blood donation by any man who has had sex with another man, even once, since 1977.Whatever justification it might have had then, in 2010 the exclusion is just nuts. It’s long overdue for a proper interment.

Some historical context: When the ban was first put into place, there wasn’t a good test for HIV infection, nor a clear understanding of the exact modes of transmission. So it made sense to exclude those who had engaged in the highest-risk sex, and this included “men who have sex with men.” But the regulations made no effort to define “sex” at all, and simply excluded all MSM.

Perhaps even this much was justified at the time, given the fear over HIV infection and the unmistakable fact that gay men were especially at risk. But today it makes no sense at all, and a group of U.S. Senators recently asked the FDA to revise the rule to reflect a very changed reality. The letter notes that having heterosexual sex with someone known to have HIV only gets you excluded for one year, while being in a monogamous gay relationship with another HIV negative person gets you banned for life.

The FDA’s initial response to the letter was an example of public health gone terribly wrong. It simply issued a statement that the ban “is based on current science and data.” But to paraphrase Fred Schneider: “Well, IT ISN’T!”

HIV testing today is extremely sophisticated and accurate, producing almost no false negatives. The “window period” where the virus is present but not detectable has been reduced to about three weeks. So a one-year ban on “MSM” – preferably with a better definition of “high-risk sex” – would be more than cautious.

We’re already far behind. The exclusion period in Australia is already down to one year, and the Red Cross there is considering doing away with even that.

So what’s the objection? It reduces to a fear of human error in mislabeled blood donations; a possibility that exists no matter how sophisticated, or even infallible, tests are or might become. Well, that can happen with any sample, but so far the fear hasn’t materialized – the risk of receiving an HIV-infected donation currently stands at about one in two million. To anyone who thinks this is still too high, I ask: In what other context would we consider that level of risk unacceptable? We routinely accept much greater risks – for example, simply by driving our cars.

The experience of other nations without this kind of blanket rule make clear that the ban isn’t truly about behavior; it’s an artifact of the Reagan Administration’s view about gay men as diseased. FDA says that its policy isn’t about sexual orientation, but no one should take that statement seriously. When you’re banning donations based on conduct that took place in 1977(!), you’re pretty far from conduct.

What’s the big deal? By how much will the blood supply be increased if the ban is reduced to one year? It’s hard to know, but gain there would be. On the other hand, the costs of keeping the restriction in place are substantial. As I’ve written elsewhere, the MSM blood ban is the kind of unjustified government policy that can only erode our community’s confidence in public health.

Given government’s dismal record on LGBT issues, it’s time to work towards building our trust. Even the Red Cross, which long opposed changing the policy, came around a few years ago.

After the senators sent a follow-up letter, the FDA relented and now says it will revisit the issue in June. Let’s see whether common sense and science will prevail over discredited views from another era.

John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Delaware. He blogs about the role of law in everyday life, and about a bunch of other things (LGBT rights, public health, biology, sports, pop culture, philosophy and lots of personal stuff) at: http://wordinedgewise.org . Here’s a fuller bio. He will be blogging the week-long Equality Forum from Philadelphia later this month.