Food and Drug Administration Commissioner Margaret Hamburg last year. (Manuel Balce Ceneta/AP)
Ben Spielberg co-founded 34justice.com and is the former manager of the Full Employment Project at the Center on Budget and Policy Priorities.

“Don’t ask, don’t tell” and the Defense of Marriage Act are gone. Washington, D.C., and 35 states permit same-sex marriage. “Out” LGBT role models abound, Republican governors in Red states now veto anti-gay legislation, and discriminatory political donations sometimes even cost CEOs their jobs.  Institutional discrimination is far from over (only 16 states provide full adoption benefits to same-sex couples, and Congress still hasn’t extended workplace protections to LGBT employees), but more Americans than ever reject anti-gay sentiment.

Yet the Food and Drug Administration still bans blood donation by “men who have had sex with other men (MSM), at any time since 1977,” when the American AIDS epidemic began. The rule, a form of official discrimination, supposedly protects blood recipients. In truth, it is scientifically baseless. It is under review today and should be overturned immediately.

Homosexual males are the only people the FDA bans on the basis of an identity characteristic. The agency notes that gay men “accounted for at least 61% of all new HIV infections in the U.S.” in 2010; because “an estimated 77% of diagnosed HIV infections among males were attributed to male-to-male sexual contact,” the FDA contends that its policy is justified. This argument, however, resembles overtly racist arguments in favor of racial profiling. It has little to do with identifying danger to the blood supply.

What’s more, the policy is based on an inaccurate model of HIV transmission and detection. When the ban began in 1983, scientists were only beginning to understand HIV; the Centers for Disease Control and Prevention did not identify routes of transmission until the end of that year.  AIDS was prevalent among the gay male population, and blood testing could not easily detect the virus that caused it.  So at that time, the FDA policy was driven by a combination of actual risk to the blood supply and justifiable fear of a poorly understood disease — in addition to homophobia.

Today, homophobia is the only surviving rationale. Blood tests are extremely accurate, and the FDA tests the blood it receives.  There is a “window period” after HIV contraction, no longer than 6 months, during which the virus may not show up in a blood test.  A reasonable policy might therefore defer prospective donors who engaged in high-risk behavior within the previous six months.

Yet the FDA policy does not currently identify actual high-risk behavior.  We know how HIV is transmitted, and we know that being a man who has sex with another man is not inherently high-risk. As shown below, the CDC periodically publishes the “Estimated Per-Act Probability of Acquiring HIV from an Infected Source” (these estimates do not factor in the effects of condom usage):


Consider Tom, Heather and John, three potential blood donors who don’t know whether or not their sexual partners have HIV.  Tom, a gay man, is in a monogamous relationship and has only oral sex.  Heather, a straight woman, is in a monogamous relationship and occasionally has anal sex.  John, a straight man, has unprotected penile-vaginal intercourse with multiple partners.

According to epidemiologists, Tom is least likely to contract HIV and taint the blood supply.  Yet Tom is the only person the FDA bars from blood donation.

Italy abandoned their gay blood ban 13 years ago in favor of a more appropriate system that focused on high-risk behaviors.  This change “did not significantly affect either the incidence or prevalence of HIV infection among blood donors.”  While the FDA insists, as it has for at least the past nine years, that it is “open to changing the lifetime ban and is awaiting the results of new research that will provide additional evidence,” additional evidence is not needed.

The American Medical Association, the American Osteopathic Association and American blood banks, including the Red Cross, all believe the policy should change.  A U.S. Department of Health and Human Services panel also recently recommended replacing the lifetime ban with a one-year ban.  However, because this change would still ignore actual high-risk behavior, the panel’s recommendation would fail to remedy these issues.  The FDA must go further when it meets today.

A policy that incorrectly identifies high-risk groups instead of high-risk behavior is neither effective nor just. Ethics and science are both clear: The gay blood ban should be lifted altogether.