commentary
Beyond the Briefs
Blood and dating discrimination
Published Thursday, 07-Jun-2007 in issue 1015
Last month, the Food and Drug Administration (FDA) reaffirmed the policy that excludes gay men from donating blood.
Prior to giving blood, all men must indicate whether they have had sex with other men since 1977. People who have used intravenous drugs or who have been paid for sex are also permanently barred from donating blood.
The FDA made the rule in 1983 to prevent the spread of HIV through transfusions.
The rule is obviously outdated and absurd on so many levels. It came about at a time when HIV hysteria plagued the country. Officials in the Reagan administration were calling for AIDS quarantines for gay men.
Today’s blood centers test donated blood so rigorously that, even by the FDA’s standards, the estimated risk for contracting HIV from a unit of blood is about one per two million in the United States.
The test detects HIV positive donors within 10-21 days of infection. Although the test is not 100 percent accurate; it’s probably 99.9 percent accurate. Until it’s 100 percent accurate, however, the FDA wants to keep the rule.
The Red Cross asked the FDA to revise the rule. The organization says the life-time ban for gay men is absurd. The rule should be that persons – regardless of sexual orientation – who have exchanged bodily fluids with another person are barred from donating blood for 30 days, and that, at the very least, there should be a one-year deferral after male-to-male sexual contact.
The FDA says that it would change its policy if data proved that doing so would not pose a risk to blood recipients.
The Red Cross argues that the policy is “medically and scientifically” unwarranted today; however, legally, there’s not much the GLBT community can do to change it. There is no Constitutional right to donate blood. Nor is it advisable to lie on the questionnaire, because to do so would violate federal law – though prosecutions are rare.
Blood centers must comply with the law. Cases from the ’90s suggest that blood suppliers incur liability for failing to abide by federal regulations. If the blood center knows or has reason to know that the donor has tainted blood, there can be liability.
Changing the rule at the federal level would, at least, create a workable standard, allowing blood banks to increase the donor supply. It would also insulate them from liability for accepting blood from gay men.
Alabama’s Department of Homeland Security was recently found to be maintaining a list of “groups that could include terrorists” on its Web site. The list included gay rights groups as well as anti-abortion groups.
Howard Bayliss of Equality Alabama said he couldn’t understand why gay rights groups would be on the list. After all, the GLBT community is known for its peaceful protests.
“Single-issue extremists often focus on issues that are important to all of us. However, they have no problem crossing the line between legal protest and … illegal acts, to include even murder, to succeed in their goals,” the site stated.
There’s truth in that statement – but it doesn’t apply to gay groups.
The reality instead is, prior to Sept. 11, the biggest terrorist attack in the U.S. occurred when Tim McVeigh and others bombed the federal building in Oklahoma. In the late ’80s, Operation Rescue, an anti-abortion group, regularly targeted doctors who performed abortions. In San Diego, the same man responsible for leading vocal protests against gay parades (Rev. Dorman Owens) was found guilty of attempting to blow up an abortion clinic. But no one in the GLBT community has ever violently attacked anyone in the name of gay rights.
Not that we haven’t been provoked. Rev. Fred Philips has tried desperately to get a violent reaction from gay folks by picketing funerals with his signs reading: “God Hates Fags.” Roger Hedgecock tried with his campaign for “Normal People,” and Dr. Laura tried with her line that gays are “Biological Errors.”
It is probably safe to say that gay folks represent one group that has been bashed for years but has never responded with violence.
A lesbian to whom the online matchmaking service eHarmony refused services has sued for discrimination based on sexual orientation
The suit follows a recent ruling from a federal court allowing a California same-sex couple to sue a Web-based adoption service for discrimination. The adoption service refused to consider same-sex couples as adoptive parents.
What will be critical for eHarmony and other online dating services are eHarmony’s reasons for denying services to gays and lesbians. If it’s simply because they don’t like us, that’s not going to fly.
Robert DeKoven is a professor at California Western School of Law
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