ABOVE: California AG Xavier Becerra, photo courtesy Becerra’s Facebook page.
In the aftermath of the Food & Drug Administration easing the ban on blood donations from gay and bisexual men, California Attorney General Xavier Becerra is leading a group of 19 states in calling for further changes to the policy.
In a letter dated April 22 to Assistant Secretary of Health Brett Giroir, the attorneys general say the Trump administration’s new policy — which requires men who have sex with men to be abstinent for three months before making a donation — is a positive step, but “doesn’t go far enough.”
“The discriminatory restrictions against blood donations by healthy gay and bisexual Americans have persisted for far too long; the steps you have taken acknowledge current rules are informed more strongly by bias than science,” the letter says.
The attorneys general call for a risk-based approach as opposed to a deferral period for men who have sex with men. Further, they call on the FDA to clarify the new policy doesn’t bar MSM from donating convalescent plasma to their loved ones.
“During this pandemic, it is important to continue to evaluate and modernize blood donation guidance to be inclusive of LGBTQ Americans,” Becerra said in a statement. “A risk-based model not only protects the health and safety of our communities – it’s the right thing to do.”
Last month, the FDA amid the blood shortage during the coronavirus crisis —as well as vocal pressure from LGBTQ advocates — changed its policy to ease restrictions on blood donations, including gay and bisexual men.
While the previous policy, established in 2015, required a 12-month period of abstinence for men who have sex with men to make a blood donation, the new policy requires a shortened deferral period of 3 months. Before 2015, the FDA had a lifetime ban on men who have sex with men.
A risk-based approach and a shortened deferral period, the attorneys general write, is feasible based on other countries to approach to LGBTQ blood donations. In Mexico, a lifetime ban on MSM in 2012 was replaced with a screening tool for “risky sexual practices.”
The attorneys general also point to gender-neutral policies in Spain, Italy and Portugal. According to the letter, Italy lifted its deferral period for MSM who donate blood in 2001 and replaced it with a process in which all donors are deferred for four months from last sexual contact with a new sexual partner or for occasional sexual contact with a partner with an unknown risk behavior.
In terms of legal arguments, the attorneys general write the current policy could violate equal protections and due process protections under the U.S. Constitution. The current deferral policy, they write, if challenged in court would be subjected to heightened scrutiny as a sex-based policy.
The Washington Blade has placed a request in with the Department of Health & Human Services seeking comment on the letter.
