Ending the lifetime ban is still discriminatory

Jason Behrmann argues that the revised policy on blood donations for men-who-have-sex-with-men is better than the previous lifetime ban, but nonetheless remains discriminatory.

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Risk of infectious diseases from blood transfusions is a highly politicised issue and has been since the tainted blood scandal of the 1980s when failures in government oversight resulted in mass contamination of the global blood supply with transfusion-transmitted infections (TTIs) – notably HIV. Health regulators, including Health Canada, responded by restricting donor eligibility criteria. One of the more contested policies aimed at reducing the risk of collecting contaminated blood was a lifetime ban on blood donations from the population of men-who-have-sex-with-men (MSM).

This precautionary, broad-stroke ban arguably was justified in the early years of the HIV/AIDS epidemic, when little was known about the virus. Much has changed since then, however. We now know that HIV/AIDS is present in diverse populations, including those that do not engage in sex between men. Equally important have been innovations in blood screening technologies for TTIs. For example, Nucleic Acid Amplification Testing, used to screen all donated blood for HIV, enables detection of this pathogen within days following infection.

For these reasons, many gay rights advocates and scientific experts have questioned the legitimacy of the lifetime ban preventing MSM from donating blood. They have argued that the ban is both discriminatory and stigmatising (e.g., perpetuating the stereotype that AIDS is a ‘gay disease’).  As well, many health organisations—including the American Medical Association—have argued that such bans are scientifically unfounded, not evidenced-based, ethically dubious, and thus warrant reform.

JanGregorAfter over a decade of calls to end the lifetime ban, this summer Health Canada did just that, replacing lifetime ineligibility with a defined deferral period. On July 22, 2013, Canadian Blood Services and Héma-Québec began accepting blood from men who have not engaged in MSM activity within the last 5 years. While this historic change in Canadian blood donation policy is a significant step forward, it is also a step backward, in terms of equity in blood donation policies for the MSM population.

Steps forward: The most laudable attribute of the new policy is that it ends a senseless ‘black listing’ of all men who have engaged in any form of homosexual intercourse. Mandating a five-year deferral is arguably less stigmatising than policies that label healthy men ‘forever tainted’—meaning inherently high-risk for TTIs—due to a single sex act that may have occurred decades ago.

Another positive attribute of the new policy is that it harmonizes MSM eligibility criteria for blood donation with eligibility criteria for the donation of other human materials. Since 2007, policies for cells, tissue and organ donations have mandated a five-year deferral period in MSM activity. The move towards equality in eligibility criteria is not yet universal, however. Donated sperm used for assisted reproduction falls under separate regulations that maintain a lifetime ban on the MSM population (for anonymous sperm donation, specifically).

Steps backward: While a five-year deferral period may appear to reduce the discriminatory and stigmatizing aspects of the lifetime ban on blood donation from MSM, this policy change is nonetheless problematic. Health regulators have long asserted that the criterion of ‘sex between men’ targets a sexual behaviour, not a sexual orientation. On this basis, they have argued that regulations on eligibility criteria are not overtly discriminatory because they apply equally to all men, whether they are gay or have simply ‘experimented’ with their sexuality at some point in time. Others view such claims as mere semantics. While the label MSM applies to a diverse population of men with diverse sexual histories, the MSM eligibility criteria still draw distinctions in such a way as to target gays and bisexual men in same-sex relationships.

Replacing the lifetime ban with a five-year deferral period has exacerbated a targeting of these sexual minority groups. While many ‘experimenters’ are now free to donate blood, the five-year deferral period essentially focuses restrictions exclusively on all sexually active gay and bisexual men, comprising the vast majority of adults in this community. With this change in policy, any argument that eligibility criteria do not overtly target the gay and bisexual community is clearly dubious.

Targeting gay and bisexual men also runs counter to calls by experts to structure blood donor eligibility criteria on specific, individual sexual practices instead of targeting societal groups. It is unsatisfying, and unscientific, that the recent change in donor eligibility criteria continues to treat all gay and bisexual men as high-risk for TTIs merely on the grounds that they are sexually active. No distinctions are made for members of this societal group that are at lower, or very low, risk for TTIs such as monogamous couples or individuals that consistently practice safer-sex. From another perspective, truly equitable and scientifically sound eligibility criteria would include an equivalent deferral period for heterosexual men and women who engage in high-risk sexual practices.

Vice president of Medical, Scientific and Research Affairs at Canadian Blood Services, Dana Devine, recently stated that, “We recognize that many people will feel that this change does not go far enough, but given the history of the blood system in Canada, we see this as a first and prudent step forward on this policy”. Without question, recent amendments regarding blood donation from MSM are a historic milestone in rectifying inequitable health policies in Canada—an important first step, but far from the last. This change in policy will not ‘go far enough’ as long as donor eligibility criteria entrench the inequities described above.  Activists must—and will—continue their efforts to eliminate discriminatory shortfalls in blood policy.

Jason Behrmann is a researcher in Queer bioethics at McGill University’s Institute for Gender, Sexuality and Feminist Studies, Montréal, Canada, and a recipient of a CIHR post-doctoral training fellowship.

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