Why? Apparently based on the view that the FDA’s ban on donation by men who have had sex with men since 1977 violates the school’s antidiscrimination policy.
Now I’m not sure whether the FDA policy is sound. Gay and bisexual males are apparently 44 times more likely to be infected with HIV than straight men, but of course it’s possible that the current screening system is good enough — not just in medical theory but in practical administration — that even donations from the high-risk group should be viewed as safe, given the screening. (There’s also the question whether gay men should only be disqualified if they report they have had sex with a man in the last 12 months, as opposed to if they report they have had sex with a man at all since 1977; but note that such a policy would also be discriminatory.)
But it seems to me that, regardless of that, suspending a practice as worthy and lifesaving as blood donation because of disagreement with the policy strikes me as showing a massive lack of perspective. I wrote about this with regard to the exclusion of military recruiters in 2002, and the arguments strike me as even more apt here, so let me adapt and repost them:
“Perspective,” my New Shorter Oxford Dictionary says, is “a mental view of the relative importance” of things.
Let’s assume for the sake of argument that the FDA is unwise in maintaining its blood exclusion policy. So what? So say the FDA is wrong — blood donations still save lives, including of course the lives of gay men. (I suspect that blood drives at universities do so even more than other blood drives, because they bring in donors who might continue to donate for the rest of their lives.) Why should the university suspend them, especially when they are conducted by organizations that are simply following the FDA’s instructions, rather than creating those instructions?
Some boycotts are purely instrumental: They aim to make things costly for some entity, so that the entity changes its ways to avoid those costs. But surely this isn’t the issue here. If the FDA changes its policy, it won’t be because they’re having a harder time getting blood from SJSU; this particular policy just can’t make that sort of practical difference. Perhaps if everyone jumps on the bandwagon, the FDA might be pressured to change. But I’ve seen no evidence that others are indeed doing it in material numbers.
What’s more, if the FDA is pressured to change by the actual risk of serious aggregate decline in the blood supply, then SJSU and the other hypothetical excluders of blood drives would be accomplishing their goals by suspending a lifesaving program, in a way that risks jeopardizing innocent lives. Is that really the right way of trying to change the FDA policy? Indeed, some causes do sometimes justify risking the death of innocents (military blockades and effective foreign sanctions have this effect). But let’s have some sense of perspective: Is getting the FDA to accept blood without sexual orientation discrimination — even if that proves to be a medically sound solution — such a cause?
So, I take it the blood drive exclusion can’t really be about practical questions — it must be about morality and symbolism. Even if it is completely ineffective as a pressure tactic, the theory goes, even if it’s not supposed to be effective as a pressure tactic (since likely SJSU doesn’t want to pressure the FDA by blocking the saving of lives), it’s still the right thing to do: The FDA’s policies are wrong, so we must refuse to help anyone who is obligated to comply with those policies.
Yet, again, let’s have some perspective. Even if blood drives are administered in a way that is bad, they obviously do a vast amount of good. So as a moral matter, excluding blood drives isn’t just remaining pure of complicity with discrimination. (“Our school shouldn’t be associated with discrimination,” one “health science major” who supports the policy is quoted as saying.) Rather, it’s remaining pure by shunning a practice that saves countless lives every year.
And as a matter of symbolism, the symbolic message isn’t “We detest discrimination.” Rather, it’s “Discrimination is so bad that we must wash our hands of helping lifesaving medical procedures, in spite of all the good they do.” SJSU has weighed life-saving blood drives in the balance, and it has found that on balance they should be shunned, rather than embraced. The symbolism of that is pretty poor.
A mental view of the relative importance of things should keep us from making this mistake. Equal treatment without regard to sexual orientation may be important. But what blood drives do is far more important. If that’s so, then you can’t treat them as a pariah activity, focusing on their small error and not on their great virtue.
When I’ve made this argument about military recruiting, some people have responded “Well, we wouldn’t let a law firm interview if it discriminated against gays; why should we let the military do so?” Yup, that’s right, the military, it’s just another bigoted law firm, people who run blood drives are just another bigoted government agency. Jones & Smith, the U.S. Army, blood drives, same difference. That’s what the logic of antidiscrimination-above-all tells us.
But perspective reminds us that those institutions that protect our lives deserve slightly more accommodation — yes, even despite what we may see as their vices — than institutions that don’t. And any morality and any symbolism that fails to keep this proper perspective is not a morality or symbolism to live by.
troll_dc2 says:
This is rather like the churches that refuse to conduct weddings for anyone because they cannot conduct weddings for gay couples, only the social consequences to third parties are a lot more serious here.
May 5, 2010, 12:52 pmUrso says:
I always had the perception of SJSU as the more “conservative” college in the Bay area.
May 5, 2010, 12:54 pmEugene Volokh says:
troll_dc2: What kind of church is that, to refuse to conduct a sacrament because Caesar won’t recognize that sacrament as applied to some people? (Of course churches are perfectly free to conduct same-sex weddings; it’s just that the state won’t give those weddings the same legal effect that it gives opposite-sex weddings.)
May 5, 2010, 12:55 pmQET says:
Except that the church marriage issue is purely one of morals while the exclusion of gay men’s blood has science behind it.
May 5, 2010, 12:55 pmpmorem says:
… but at least the dead will be “morally pure”.
I think I’ve heard this logic before.
Salem?
May 5, 2010, 1:01 pmneurodoc says:
Any church that wants to conduct weddings for gay couples is free to do so. Whether states will recognize those marriages is a different matter.
May 5, 2010, 1:03 pmtroll_dc2 says:
EV, I have read news articles (that I have no idea how to find right now given my limited time to play on the computer) about churches announcing that they would not conduct any traditional weddings. If I recall, at least one of these churches was in Oregon or Washington state. The information might be found in the archives of the newly resurrected Washington Blade or some other gay newspaper or Web site.
May 5, 2010, 1:05 pmElliot says:
A church is free to marry a goat and a chicken if it wants.
May 5, 2010, 1:06 pmTim McD says:
SOBs won’t take my blood either. I spend a total of 4 months in England in the early ’90s and as a result of the mad cow scare, they would not let me donate after 96 or so.
Of course, now that I have had open heart surgery, I cannot donate due to that as well.
So, I am being double discriminated against! Do I qualify for some sort of affirmative action program?
May 5, 2010, 1:13 pmtroll_dc2 says:
neurodoc, my point was that the churches in question were symbolically challenging a policy that they do not like and cannot themselves do anything about. SJS does not like the FDA’s policy but cannot change it; so it has adopted the symbolic stance of not allowing anyone to give blood.
Heterosexual couples can always find another church to enter into marriage. But when there is a shortage of blood, people who need it may just be out of luck, since would-be donors may not be willing to go elsewhere or may not know where or when to go.
The best response would be for a blood drive to set up one inch off of the campus. I wonder whether anyone would be so public-relations challenged as to try to shut it down.
May 5, 2010, 1:13 pmJB says:
The military angle is a bit weak. We have evidence that gay men’s blood is riskier, so gays shouldn’t donate blood; all the evidence we do have suggests that openly gay soldiers (as opposed to closeted ones) do not reduce military effectiveness.
Yes, we should grant the military more latitude in general, but the specifics completely break down the parallel here.
May 5, 2010, 1:15 pmShelbyC says:
Mine either. I dated a woman from Gabon in the early ’90′s. Makes life a little easier.
May 5, 2010, 1:26 pmPhatty says:
I propose a solution. Allow gay men to donate blood, but segregate that donated blood and only use it where the recipient has given informed consent.
If I was dying and needed a blood transfusion to keep me alive, but no “clean” blood was available, I’m sure I would consent to the use of “gay blood” knowing that there was a slight risk that the screening test did not catch an HIV infection in the “gay blood.”
Also, people already known to have HIV could use the “gay blood.”
I think its a bad idea to altogether reject blood donors, when there are still plenty of benefits to be gained from the possibly-tainted blood.
May 5, 2010, 1:30 pmMichelle Dulak Thomson says:
Tim McD, ShelbyC,
Join the club. I lived in the UK for nine months in 1988-9. So far banned from blood donation. But no one is going to shut down a campus blood drive on the grounds that it discriminates against us.
May 5, 2010, 1:33 pmtroll_dc2 says:
I found this article from 2007. http://webcache.googleusercontent.com/search?q=cache:zH1Mk0q3z9UJ:www.citypages.com/2007-11-21/news/the-wedding-crashers/+church+refuses+to+marry+heterosexual+couple&cd=3&hl=en&ct=clnk&gl=us
May 5, 2010, 1:34 pmRichard Nieporent says:
showing a massive lack of perspective
That’s putting it mildly. Try irresponsible.
May 5, 2010, 1:35 pmgecko says:
Gay males (who have had sex with other men) have been proven time and time again to not only have an elevated risk of HIV but other blood borne diseases as well. Some of these diseases don’t yet have as tests as sophisticated as the HIV procedures, which by the way are still somewhat imperfect. Plus they make a tiny portion of the donor pool and a zillion other groups are banned and don’t complain. Yet we are told blood bans will lead to shortages (with little to no evidence). Crazy infected gay males will donate out of malice because of this ban (with little to no evidence). And that this ban hurts a few people’s precious little feelings (probably the main reason they oppose this ban).
Even the integrity of the US blood supply must be sacrificed at the altar of Political Correctness.
May 5, 2010, 1:36 pmpete says:
The other issue is that this is really not sexual orientation discrimination, its sexual practice discrimination. Lesbians and celibate gay men (for instance a gay 18 year old who has not had sex with a man yet) can donate just as easily as heterosexuals.
May 5, 2010, 1:36 pmOpenVolokh says:
I am all for gay rights. But I think this policy by the FDA should only be changed based on science. If the costs of screening gay men is too high (keeping in mind that there will always be mistakes — there is no such thing as 100% safe blood) then they should by all means be excluded from giving blood.
It seems to be that it would me pretty ridiculous to have anyone die from contaminated blood in the name of gay rights. What about the rights of the person who receives blood to not die or get an incurable disease? The safety of the blood supply is paramount above all other considerations.
If the policy could be changed without decreasing the safety of the blood supply (which as has been mentioned, is not 100% safe even now) then the policy should be changed. But it is not clear to me that you can include a higher risk population in the blood supply without decreasing its safety, given the inevitability of human error in screening blood.
Should gays have the right to marry and have those marriages recognized by the state on the same basis as heterosexual couples? I absolutely think so. And I also do not think people like John Eastman who has referred to homosexuals as akin to barbarians are qualified to be California Attorney General. But this is a safety issue and should be determined on the basis of science, not politics.
As far as Eugene Volokh’s point about this boycott, I am not sure that it is anything more than symbolic. I am doubtful that such a boycott by San Jose State University will have a huge impact on the blood supply. Instead I object to it on the ground that this sort of decision should not be politicized but instead should be left to scientific elites should make policy solely on the basis of the safety of the blood supply.
May 5, 2010, 1:39 pmcaliforniamom says:
Blood drives also discriminate against people who have had cancer and against those who are taking certain medications.
Discrimination? Maybe a violation of ADA?
May 5, 2010, 1:39 pmShelbyC says:
And I’m not sure to what extent this is discrimination at all. Giving blood doesn’t benefit the donor.
May 5, 2010, 1:49 pmshawn-non-anonymoys says:
I think this very idea is part of why some GLBT folks find the ban upsetting. You’ve just set up a regime where “gay” = “not clean”. As a gay man, I’d prefer the outright ban which is far less direct in implying “unclean” than your compromise.
None of which goes to professor Volokh’s statement that gay men have a higher chance of being infected. I am HIV negative but cannot give blood. I find that annoying because I do want to help others in this way and have in the past. I think I find not being able to donate less annoying than someone else might find HIV–which is the whole point.
Anyways, it’s a voluntary ban. I could still donate if I wanted to by lying on the interview–which is the sort of problem the ban does not address.
May 5, 2010, 1:53 pmBlue says:
I’m banned due to a stint in Mad Cow Land in 1993 as well as travelled in malaria-infested countries.
This kerfuffle is one of the more ridiculous ones in the current “civil rights” climate.
May 5, 2010, 1:53 pmJoe says:
Perspective please. If this one institution doesn’t have blood drives, will there be a shortage of blood? Are there no other options for the blood centers involved? In my area, I have repeatedly gave blood in mobile centers in vans. The drives are in many places, including churches, high schools and other places. In major areas, they usually are permanent places like a Red Cross center to give blood. The few extra people too lazy or whatever to do this is not going to threaten the blood supply. You can give red blood every 56 days. There usually are only a few drives a year at these places anyways. It’s a symbolic move, overblown yes, but not a BFD.
There’s also the question whether gay men should only be disqualified if they report they have had sex with a man in the last 12 months, as opposed to if they report they have had sex with a man at all since 1977; but note that such a policy would also be discriminatory.)
A year ban is much different – many things, including a tattoo, requires such an extended but not basically permanent wait.
Also, the value of the policy is unclear. It has to obviously rest on honest reporting. Second, this suggestion is a WHOLE LOT DIFFERENT than saying having sex with a guy in 1977 means no donation. Someone can frequent prostitutes, shoot up with filthy needles or eat mad cow infected meat and not be banned for 33 years from giving blood. And, as to 44x, does that include people who had sex with a guy once ten years ago vis-a-vis others matching up with risk factors?
May 5, 2010, 1:53 pmsoccer dad says:
And given that the prevelance of mad cow disease is so much less than that of AIDS, those excluded because of the mad cow scare are those who really are discriminated against.
May 5, 2010, 1:54 pmRandy says:
First off, it seems that the Prof. is arguing that when it comes to discrimination, we should weight the benefits of the organization to society and the amount of discrimination. I would have no problem with that.
So, if the Red Cross decides that it will refuse blood from African Americans on the grounds that some people are so racist that they would find it morally objectionable, we should weigh the costs of the discrimination against the good that the Red Cross. Since they do such wonderful work, we should all be able to live with a little discrimination, right?
Now, if we are going to take the scientific approach, that gay men are more likely to have HIV than other groups, so we should exclude them, that’s great. I can support that. So what other groups have high HIV rates? Turns out blacks have a very high rate of HIV, according to the CDC. By state, California has the highest rates. By age, people in their 30s. So certainly, we should exlude blacks in their 30s who live in CA.
To discriminate against this group is just a small inconvenience compared with the good work they do. So no one should have any objection. So, why don’t they?
May 5, 2010, 1:56 pmmischief says:
There are different types of HIV. If you acquire a new one, it can make you much worse.
May 5, 2010, 2:05 pmsecond history says:
….I’m not sure to what extent this is discrimination at all. Giving blood doesn’t benefit the donor.
Not true. Witness Kramer in “The Blood” episode of Seinfeld.
May 5, 2010, 2:07 pmTomHynes says:
I give blood regularly and I love that question. I stare off into the distance and say “Hmm, 1977? 1977?”
I also like the one where they ask if anyone has paid me to have sex with them within the last year. No, but it could happen. Seriously, somebody make me an offer.
May 5, 2010, 2:08 pmChristy Clinton says:
I’ve not read the comments yet (sorry), so I’m probably not the first to say this.
I’d be a lot more convinced of their moral convictions if they also pledged (and acted on that pledge) not to RECEIVE blood transfusion or transfusions of any blood products, on the grounds of their convictions regarding discrimination.
Tell me that they were willing to let their child die without the transfusion, and I’ll be convinced of their moral certainty.
Until then, this is just grandstanding and taking an easy path with hidden consequences. It’s not a moral stand at all.
May 5, 2010, 2:08 pmKenvee says:
Another Mad Cow excludee here. I think that they do need to improve the screening procedures on donated blood, because they keep excluding larger and larger groups of people and then complaining about blood shortages. (The Mad Cow exclusion used to be just if you were in the UK for more than 6 months during the height of the scare, I think 1995-97. They keep moving the dates back and shortening the length of time stayed.) But when they do have an actual medical reason for the exclusion, then I don’t see that as any kind of discrimination.
This policy is just another poorly thought-out symbolic gesture that winds up revealing something about the gesturer they didn’t intend.
May 5, 2010, 2:10 pmRandy says:
Blue: “This kerfuffle is one of the more ridiculous ones in the current “civil rights” climate.”
It’s always easy to dismiss the concerns of others when they don’t affect you at all, right?
May 5, 2010, 2:15 pmtroll_dc2 says:
Randy, I think that it is ridiculous too, and I am also gay.
May 5, 2010, 2:18 pmUrso says:
Nationwide? Surely not. But within San Jose? SJSU is a big school, and I’d assume without evidence that college students are more likely to donate blood – more politically aware, healthier, have loads of free time to sit in that cold bus, plus you get free cookies! Most blood banks aren’t sitting on a huge surplus supply to start with.
May 5, 2010, 2:23 pmMac says:
Perfectly stated, Christy. It is so easy to be superior and “moral” when it doesn’t effect oneself in the slightest. If they had their way and they needed blood and there was none, do you suppose they would then be screaming about that? Is there no sense of rationality or logic with the PC crowd?
I have had cancer. Had is my word. The blood people’s word is have. I resent that, but I still can’t give blood. Of course, the fact that my cancer could return is something I would rather not be reminded of. Still, I am most certainly not going to suggest that they should not do everything they can to make the blood supply as safe as possible. You would think these people might realize they may need blood themselves one day. Oh well, that is too rational.
Also, do you suppose the people who supply blood may act with an abundance of caution because they can be sued if they take the slightest risk?
May 5, 2010, 2:28 pmunlawyer says:
What are the infection rates of the groups that you mentioned and the infection rate of men who have had sex with men? By the way, just because groups A, B, and C have high infection rates does not necessarily mean that the set of people common to those groups has a high infection rate.
May 5, 2010, 2:28 pmRandy says:
OpenVolokh: “It seems to be that it would me pretty ridiculous to have anyone die from contaminated blood in the name of gay rights.”
Of course. But who is arguing that? Certainly not gay people. But I think it’s pretty clear that the vast majority of gay men are not HIV poz. So the classification is overbroad. Wouldn’t it be better to simply ask whether you are in fact HIV pos? Then you exclude the very people you are actually concerned about, regardless of status.
May 5, 2010, 2:28 pmronnie dobbs says:
According to the U.S. Supreme Court, achieving a racially diverse student body at the University of Michigan Law School is sufficient justification to stray from the principle of non-discrimination. Seems to me that securing a safe and clean blood supply is at least as important as ensuring that there are sufficient numbers of minority students at UM, even if it results in hurt feelings* to would-be gay blood donors.
*As someone who is banned from giving blood because I lived in the UK in the 80s, I can tell you that it was really tough the first few times I was turned away from the blood drive, but then I had a good cry and went on with my life.
May 5, 2010, 2:29 pmkeypusher64 says:
Yes, I am also foreclosed by this policy (the one about England; luckily I have not yet had open heart surgery).
The policy seems absolutely crazy (though I am grateful for it, as I always hated donating blood).
May 5, 2010, 2:30 pmtroll_dc2 says:
As you know, Randy, a lot of people are poz but either do not know it or do not want to admit it.
May 5, 2010, 2:32 pmOpenVolokh says:
Randy, these are imperfect screening methods. As someone has mentioned, it is possible for actively gay men to donate. If they are willing to lie.
Blood that is donated is tested before it is used. However, these tests are imperfect. Think of it this way.
— Stage 1 Screening ——- Stage 2 Testing—-
. . . . . . . . . . | . . . . . . . . . . . . . . . . . . .| . . . . . . .
————————-blood =======————->;
In stage 1, there is a screening process based on lifestyle questions. In stage 2, donated blood is actually tested for various diseases and other contamination.
The problem is, stage 2 tests are not perfect. In fact, every year, some of the people who get blood transfusions are going to get a disease as a result. Some of these people who get diseases are going to die because of those diseases.
The reasoning behind the stage 1 screening is that if a lower percentage of blood that reaches stage 2 tests, then ultimately a lower amount of blood that is actually available for transfusion will be contaminated, and fewer people will get contaminated blood through transfusions.
People have mentioned that gay men can still donate if they are willing to lie. This is true. Stage 1 screening is not perfect as it is. People who lie make it even less so.
So, does it make sense to ban people from California from giving blood, on the grounds that it has the highest level of HIV infection than other states? In fact, in principle, it should be considered. (It should be noted that HIV is merely one way in which blood can be contaminated.) But, there is a tradeoff here. If stage 1 is too expansive, you will run into another problem. Namely, there will not be enough blood for everyone who needs it during surgery. As a result, people will die unnecessarily because of inadequate supply of blood for necessary life saving transfusions.
The bottom-line is that our policies regarding stage 1 screening should be geared to make blood emerging after stage 2 testing as safe as possible. But that stage 1 screening should not be so strict, that it results in an inadequate supply of blood.
May 5, 2010, 2:33 pmFrank Drackman says:
Always wondered why having Gay sex with a man at one minute to midnite on December 31st 1976 was OK, but one minute aftermidnight on January 1st 1977.. makes you an un-donateable…
May 5, 2010, 2:33 pmand I can relate, although I’m not queer, I was in Europe during the 90′s, so technically I’m not supposed to donate…
Just Answer “No”, Regular Blood Donation’s been shown to lower the incidence of Congestive Heart Failure…anybody gets Mad Cow disease thats there problem…
ShelbyC says:
On a serious note, I wonder how folks who were victimized as children feel about the ban.
May 5, 2010, 2:35 pmAlex J says:
Some boycotts are purely instrumental: They aim to make things costly for some entity, so that the entity changes its ways to avoid those costs.
I think that is exactly what they are doing. Blood is bought and sold, boycotts raise the price regionally. If places can’t get enough blood locally due to the price it would be more cost effective to let gay men (and people boycotting) donate and just run more tests. No one will be dying of blood shortages because of a rise in price. The FDA would cave well before that.
With the issue of science it seems that the Red Cross and other blood groups disagree with the FDA policy saying it is “medically and scientifically unwarranted.”
May 5, 2010, 2:37 pmRandy says:
“By the way, just because groups A, B, and C have high infection rates does not necessarily mean that the set of people common to those groups has a high infection rate.”
Sure. But if the point is to eliminate all chance of HIV infection, then you must eliminate any group with a noticiable infection rate. What is the cutoff point to determine? I don’t know. That’s a subjective decision.
I know that I am negative. So what’s the point of not accepting my blood?
May 5, 2010, 2:41 pmChrisTS says:
My blood’s no good either: positive TB skin test from Dad’s long struggle with it.
I cannot say I feel singled out or discriminated against on this basis, although I do get tired of explaining to my students why I’m not at the Blood Drive every semester. Of course, people who have positive TB skin tests (and negative xrays) and people who were in England during the Mad Cow scare are not generally the objects of discrimination. Gays, alas, are.
Still, I think Randy’s suggestion that we ask if folks are HIV positive does not address the risks adequately; not everyone knows if they are HIV pos or not.
This is just one of those cases in which we have to accept a ‘profiling’- one that does not deny anyone a benefit – for the sake of safety.
May 5, 2010, 2:44 pmChristy Clinton says:
I’m also a regular donor (platelets) and tend therefore to pay closer attention to our local blood supply. Blood supplies fluctuate radically throughout the year, and some blood products have shorter shelf lives than others and are thus more impacted by these fluctuations. Because of this, there are actually some treatments that are postponed due to lack of product. For some, it might not be life-threatening, but for most it at least has a strong impact on quality of life. Cancer patients, hemophiliacs, newborns, and many others depend on blood products. It’s not just the headline-grabbing trauma victims who need the help.
Also, most blood products don’t really travel that well. It’s not like you can load up a semi-trailer and ship blood to the hospital in the next state. Blood stays in the local community, so SJSU is really telling their neighbors that this changing this policy is more important than the good that could be done for them.
Perhaps the donors will go off-campus and donate anyway. Perhaps not. Either way, the community knows where it stands on the priority list of those making and supporting this decision. Since it’s a publicly supported school, I wonder if that priority stance is shared?
May 5, 2010, 2:46 pmwhit says:
“Always wondered why having Gay sex with a man at one minute to midnite on December 31st 1976 was OK, but one minute aftermidnight on January 1st 1977.. makes you an un-donateable…”
in the same way that having sex with somebody an hour before they reach the age of consent is a serious felony, whereas mere minutes later… it’s just a good time
i’ve made this point many times. the law, and policies, often have to draw bright lines, even (god forbid) arbitrary ones.
which is worse, an arbitrary bright line distinction, or a subjective one where the individual blood screener takes some people who had sex on jan 1 1977 and rejects others because he/she likes them, finds their story compelling, etc.
May 5, 2010, 2:47 pmBama 1L says:
Concern about the blood supply causes people to do all sorts of crazy things.
Once there was a mob boss who needed a transfusion for an operation. He didn’t trust the blood supply because of AIDS, etc., so he had friends and family donate the blood. No tests were run on this supply. You know what’s coming: he got HIV. It turned out that one of his henchmen was HIV positive and hadn’t tell anybody; according to some stories the henchman shared needles for steroids and according to the others he was the model for Vito Spatafore. The mob boss sued the surgeon (who as you can imagine was not exactly the paragon of the medical profession) and eventually died of AIDS in prison.
True story.
May 5, 2010, 2:52 pmuh_clem says:
A marriage that consists of an inanimate object and two animals?
Let’s see – that coveres bigamy , inter-species , and inanimate-object fetishism. Make it a billy-goat and a rooster and I think we’ve covered all the bases. It’s Rick Santorum’s worst nightmare.
May 5, 2010, 2:56 pmOpenVolokh says:
Look, stage 1 screening is highly imperfect. There is blood that is contaminated that gets through such screening and there is a lot of blood that is not contaminated that is rejected.
So, if you want to argue that stage 1 screening is imperfect, you are absolutely right. There is no arguing with you. If you have concrete proposals for making stage 1 better, then we should absolutely implement them.
The point is that stage 1 screening should be designed to the best of our ability to minimize the amount of contaminated blood that gets to stage 2 where blood is actually tested WITHOUT being so restrictive that there is not enough blood available for transfusions. It is believed that screening out gay men is effective at minimizing the percentage of contaminated blood that reaches stage 2. Does contaminated blood still reach stage 2 testing? Yes. Does some contaminated blood even manage to get past such testing? Yes. Less is better.
The bottom-line is this. We want the percentage of contamination to be as low as possible when blood reaches stage 2. Maybe there is absolutely no problem with your blood as an individual. But this isn’t about individuals. This is about the purity of the blood supply. Stage 1 screening is definitely very rough and we should be open to modifying the policy. But only if such changes increase the safety of the blood supply. (The only time it would be acceptable to decrease the safety of the blood supply is in situations where there is not enough blood for necessary transfusions.)
May 5, 2010, 2:56 pmunlawyer says:
I don’t think that the practical goal is to eliminate all chance of HIV infection as opposed to reducing it. The cut-off point is therefore a policy decision. As OpenVolokh mentioned there is a need to balance availability with risk. It would be great if everyone without infection could donate blood. However, given the risk of an imperfect testing procedure, what is the best policy? I don’t know.
May 5, 2010, 3:03 pmShelbyC says:
I don’t think the point to eliminate all chance of HIV infection, since the only way to do that is eliminate all blood donorship. Since we clearly have a surplus of folks willing to donate blood (if people were dying in emergency rooms due to lack of blood, we’d want even HIV positive donors) the point is to elimitate the surplus donors in a way that’s somewhat correlated to risk, instead of doing it, say, randomly.
May 5, 2010, 3:04 pmRandy says:
“As you know, Randy, a lot of people are poz but either do not know it or do not want to admit it.”
Let’s be clear. The FDA is the one that drafted the rules. But the American Red Cross, which actually collects much of the blood supply, is in favor of changing the rules to allow gay men to donate blood. Why? Because they say that screening blood for HIV is so effective, they can catch it. Why are gay men needed? Because they say that there are still too many shortages of blood, and we need everyone to give blood who can.
Already, the Red Cross in many other countries, such as Australia and Sweden, allow gays to give blood.
“But that stage 1 screening should not be so strict, that it results in an inadequate supply of blood.”
Yup, and the Red Cross believes that the current restrictions are too strict, and that results in an inadequate supply of blood. Or are you saying that the RC doesn’t know what it’s talking about?
May 5, 2010, 3:05 pmRandy says:
ShelbyC: ” Since we clearly have a surplus of folks willing to donate blood (if people were dying in emergency rooms due to lack of blood, we’d want even HIV positive donors) the point is to elimitate the surplus donors in a way that’s somewhat correlated to risk, instead of doing it, say, randomly.”
The Red Cross disagrees, and has been arguing since at least 2007 that the FDA should change the policy.
May 5, 2010, 3:07 pmRandy says:
ChrisTS: “This is just one of those cases in which we have to accept a ‘profiling’- one that does not deny anyone a benefit — for the sake of safety.”
It’s too bad that people just accept these things without actually considering the real evidence. Framed in this manner, who can be against profiling?
I am O positive, which means I’m the universal donor. The Red Cross really really would love me to donate, because there is always a real need for my blood. I know people who are O who get regular phone calls to remind them to come in and give blood. For some blood types, it’s the only type they can accept, and if there is a shortage of that blood type, well too bad for them.
So it can become a balancing act — deny people who need blood just to enforce this ban? How do you consider that the ‘safe’ approach if you need blood and you can’t get it?
I’m all in favor of safe blood. Of course. But I’m also in favor of having as much blood as the medical profession needs. We don’t have that. And that’s why the Red Cross wants the policy changed, and it has changed in other parts of the world to no ill effect.
May 5, 2010, 3:14 pmShelbyC says:
Hey, sounds good to me, I’m not arguing in favor of the policy, just opining on what the “point” is.
May 5, 2010, 3:18 pmKenvee says:
I don’t know. What do women who were raped by an HIV-positive man think? Or people who got HIV from a blood transfusion? The restrictions are based on medical reasons. It’s not based on whether you had a culpable mental state.
And Randy, if there’s a medical reason why screening out some people is no longer necessary, then that’s a great reason for getting rid of the restriction, and I think everyone who’s commented here would agree. But it’s not a good reason to get rid of a medical restriction because someone’s feelings get hurt by it.
May 5, 2010, 3:25 pmChristy Clinton says:
The FDA does lots of stupid things. Just today I read where they decided to deny approval to a drug they felt hadn’t been adequately proven to be effective, despite the fact that its marginal effectiveness would be the only treatment available for the disease it addresses (which is a disease typically terminal in 3-5 years).
Based on the comments I’ve read here, I don’t think anyone is advocating to keep this policy if it’s truly ineffective in achieving the goal of a safe blood supply. Personally, I agree with you that the Red Cross is a noted authority on the subject, and probably should be listened to by decision-makers at the FDA.
What is being argued, however, is the stance taken by SJSU that this policy is purely discriminatory and therefore it is better to let people die/suffer than to submit to it. Most believe that this policy is intended to improve safety of the blood supply, and that the decision to continue it or change it falls somewhere on a continuum of comparative values — safety vs. supply. That’s part of what EV was talking about when he said ‘perspective’.
May 5, 2010, 3:31 pmOpenVolokh says:
To the extent that the Red Cross is motivated in this argument based on the scientific merits rather than its own self interest, I think it should be taken seriously. Of course, I am skeptical of the Red Cross, because the organization has a bone in this fight.
I think it is quite possible that there will be different scientists who will take different views based on the data. But the point is, this should be a scientific debate based on maximizing the safety of the blood supply. No other consideration except the safety of the blood supply should be even considered, except in cases where there is an inadequate supply.
It is quite possible that excluding gay men could DECREASE the safety of the blood supply if this sort of screening resulted in a higher percentages of contaminated blood reaching the stage 2 testing stage. Anything we could do to improve stage 1 screening we should do.
But ultimately, I view this as scientific decision to be made by elites with a knowledge of statistics and the design of our current system. In my view, there is no place for boycotts or any other sort of politicization. I would be perfectly happy if the policy were changed, as long as that increased the safety of the blood supply.
May 5, 2010, 3:33 pmDon Miller says:
Like many government policies, this one was established as a reaction to a public concern.
It was established in the early 80′s, blood tests for HIV were in their infancy. They were expensive and time consuming as well. FDA reacted to try and protect the blood supply. People were already getting HIV from contaminated blood.
That is the source of the 1977 date. I gave blood in high school (1983) and that question (or one very similar) was being asked then.
However, like other commentators have said, the continuing science support that sexually active homosexual men are at much greater risk for a variety of diseases besides HIV. Hepatitis and Syphilis are two that come to mind.
Until the Science supports changing the policy, I support it staying in place.
May 5, 2010, 3:35 pmUrso says:
To me, the question is not really whether it’s a valid FDA policy. That’s for the doctors to decide, and I’ll happily stfu. The question is whether SJSU’s actions are a fruitful way of getting that policy changed. I think the answer is hell no. The idiom “cutting off your nose to spite your face” comes to mind.
May 5, 2010, 3:49 pmSteve says:
This university policy is absolutely insane. “Sexual orientation” isn’t even (directly) at issue; when you go to donate blood, nobody asks you, “are you gay?” The question is whether you have engaged in any one of a laundry list of activities that, according to sound statistical data, put you at significantly higher risk of carrying dangerous bloodborne diseases. I’m not going to get into a “disparate impact” analysis (I was always terrible at Con Law), but I agree that protesting a policy that saves lives on the grounds that it might hurt somebody’s feelings demonstrates a gross lack of perspective or horribly messed-up priorities.
That’s higher education for ya’.
May 5, 2010, 3:51 pmOpenVolokh says:
It is possible that some people might oppose current FDA policies on a basis other than “feelings.” But, I don’t think the argument that the policy violates SJSU antidiscrimination policy was a decision based on the merits of the policy in terms of keeping blood as safe as possible.
May 5, 2010, 3:58 pmGMUSL '07 Alum says:
You might have more of a point if you weren’t wrong on the science of blood type compatibility.
You are, like me, only a potential donor to others who are RH+, regardless of their blood type — i.e., O+, A+, B+, AB+. You (and I) cannot donate to ANY RH- recipient without additional complications and/or immunosuppressant drugs. Thus, our blood is far from universally-accepted.
O- blood can be given to ANY other blood type, as they don’t excite an immune response from ANY RH+ recipient. O- is the universal downer.
May 5, 2010, 4:11 pmFact Check says:
Not according to the Red Cross: ‘ Those who have ever used IV drugs that were not prescribed by a physician are not eligible to donate.’
That seems analogous – engage in an activity that can raise the risk of infection, and you can never donate. It doesn’t matter if you used a sterile needle from your insulin kit, injected before 1977, and have had every test known to medicine without finding any infections. Is that policy objectionable as well?
May 5, 2010, 4:22 pmptt says:
To clarify, 1997 is when the HIV virus is thought to have arrived in the U.S. Men who had sex with men before that date and ONLY before that date cannot, in theory, carry the virus.
May 5, 2010, 4:26 pmStormy Dragon says:
For all those pushing the ‘science’ angle, I’d buy that if all groups with similarly elevated risks were excluded as well. For instance, according to CDC statistics, for example, black males have 5 times the infection rate of the general population. Should they be banned from donating blood as well?
May 5, 2010, 4:30 pmkurt9 says:
It is insane to believe that political correctness has legitimacy in what is a medical safety issue.
May 5, 2010, 4:32 pmJMA says:
This whole blood drive thing is the best reason I have to get a tattoo. I was thinking of a disclaimer. “Blood found within these veins is for my personal use only,” or something along those lines.
May 5, 2010, 4:38 pmLinus says:
I’d like to see SJSU’s antidiscrimination policy. I doubt it says something like “SJSU shall not associate itself with discrimination.” Policies tend to be more specific than that, I think. So I wonder what it says.
If allowing the blood drives really does violate the policy, then I have absolutely no problem with suspending the blood drives. That’s what policies are for. But then the next step is the policy needs to be changed.
This really is too different from the military recruitment on campus issue. For one thing, the military is practicing the exact discrimination the antidiscrimination policies are trying to discourage. The blood donor “discrimination,” on the other hand (as mentioned above), is not status-based, but activity-based. Celibate gays (who, if out, would not be welcome in the military) can donate blood. Straight men who have had sex with other men can’t. Lesbians can.
For another thing, the military discrimination serves no good purpose, while the blood donor “discrimination” does.
(Like many in these comments, I have been a “victim” of blood donor “discrimination.” But since I just passed the one-year anniversary of my latest tattoo, the ban has been lifted and I’m free to donate again… until the next tattoo.)
May 5, 2010, 4:52 pmravenshrike says:
The date’s 4 years before HIV became widespread enough in the US to become noticeable. I would assume that they figure the risk of someone from before then being infected or a carrier is minimal enough to donate blood.
May 5, 2010, 5:03 pmRandy says:
Kenvee: “And Randy, if there’s a medical reason why screening out some people is no longer necessary, then that’s a great reason for getting rid of the restriction, and I think everyone who’s commented here would agree. But it’s not a good reason to get rid of a medical restriction because someone’s feelings get hurt by it.”
Of course. Who’s arguing otherwise? Not me.
Openvolokh: “No other consideration except the safety of the blood supply should be even considered, except in cases where there is an inadequate supply.”
Agreed. So if a gay man has ‘safe’ blood, he should be allowed to donate. If a straight white woman has HIV, she should not. But to broadly eliminate an entire group of people makes no scientific or medical sense at all, especially even a majority within that group provide safe blood.
Christy Clinton: “What is being argued, however, is the stance taken by SJSU that this policy is purely discriminatory and therefore it is better to let people die/suffer than to submit to it. Most believe that this policy is intended to improve safety of the blood supply, and that the decision to continue it or change it falls somewhere on a continuum of comparative values — safety vs. supply. That’s part of what EV was talking about when he said ‘perspective’.”
What is being argued is that certain blood types are in chronic short supply, but we will keep this silly ban just because. We would rather have the short supply that take concrete steps to eliminate it — afterall, a little discrimination is perfectly fine as long as (a) it doesn’t apply to me, and (b) the organization does super duper fine work.
Perhaps San Jose is saying that we want to increase the blood supply by increasingly the pool of donors, and that helps the people are dying and/or suffering from the lack of nutritious blood.
And no, I don’t think vampires should get blood either.
May 5, 2010, 5:15 pm~aardvark says:
What about county workers who refuse to conduct weddings because they are obligated by law to include gay couples? Is this a different situation or do you just have a skewed perspective?
And which “third parties” are you talking about? The ones who are specifically targeted by the church’s message? “Look what could happen if you were gay”? This seems to be an entirely different case form the SJSU one–at SJSU the target audience is not the people directly affected.
But I also want to temper Eugene’s criticism of the policy. The policy may be ineffectual in achieving its antidiscrimination goals and it may cause minor inconveniences to people who want to donate, but it prohibits its students, faculty and staff neither from donating blood nor from participating in and promoting blood drives off-campus. The SJSU issue concerns facilities use, not blood drives per se. So a group of concerned students, parents, faculty, etc., can organize a blood drive at a community center, a city library or some other facility nearby. The inconvenience is minor and everyone is happy.
As I said, the policy may be ineffectual and, therefore, misguided, but criticism that makes a mountain out of a molehill is also misguided.
Does FDA also prohibits donations of blood from women who had sex with high-risk men? No. It never occurred to Reagan-era bureaucrats that HIV can be carried by heterosexuals. The rule was put in place not because they wanted to mitigate risk, but because they believed that it was a “gay disease”. Don’t think that I let Dems off easy on this one–they’ve had plenty of chances to change the rules too and they didn’t. If this was a major issue, they should have been more proactive. The visa ban, at least, has been lifted last year.
The ban on people who lived in the UK for a substantial period of time is quite different. Testing the blood for C-J disease is much more expensive and difficult, if not impossible. The blank screen is much more practical in this case. And the “gay ban” is absurd at a number of levels. Those who have been infected prior to 1985 are likely dead by now. Very high probability–much higher than carrying the virus into the blood supply by any homosexual male. Those who have been infected more than 12 months prior to donation would be relatively easily detectable–and I would hope that the rest of the blood supply is tested for HIV, hepatitis, and other fairly common disorders (there have been several cases of fairly uncommon infection transmissions because no one has ever thought of testing for them, and, ultimately, it’s always going to be a finite set). Generally, the only truly high-risk group is those who have had any unprotected sex (including oral) with a person of unknown infection status within the last 3 months prior to donation. That would exclude a quarter of the college women on the spot–certainly not something FDA wants to do. But, yes, it would also include a large proportion of sexually active homosexual men. The point is, they are not the only group that should be under this cloud. And it’s a question of months, not years.
Making overgeneralized scurrilous statements is irresponsible. The policy has no effect on whether blood can be donated and, in theory, should have very little effect of how much of it is donated.
Speaking of irresponsible, it is generally believed by medical professionals (including all the doctors in my extended family) that it is irresponsible to donate blood outside a medical facility, e.g., a hospital. My family eschews blood drives and donates at a local hospital at regular intervals. So, in some backwards way, SJSU may well be more responsible than the organizations that put on blood drive in relatively unsanitary conditions. Again, I suspect, most critics are asking the wrong question and are only reacting to the superficial idiocy of the policy without much regard as to its actual effect.
Here’s another simple question–would FDA ever change its policy to allow donations by men who have had gay sex but who provide an affidavit of their non-infectious status from a recent test? Pause and think before you answer that question.
May 5, 2010, 5:19 pmRandy says:
ShelbyC: “Hey, sounds good to me, I’m not arguing in favor of the policy, just opining on what the “point” is.”
I know. I just wanted to make sure that other readers understood. Thanks!
kurt9: “It is insane to believe that political correctness has legitimacy in what is a medical safety issue.”
Actually, it’s insane to assume that political correctness is any consideration at all, especially since no one has raised the issue. If you want to argue the medical safety issue, then you should take it up with the doctors at the Red Cross who disagree with you on this point.
Alum: “Thus, our blood is far from universally-accepted.”
Thanks for the correction. I was always told that I was the universal donor. Regardless, how does that change the fact that there is still a shortage of blood in many areas of the country and for certain bloods? That I was wrong about my blood type doesn’t seem to make the argument any weaker.
May 5, 2010, 5:22 pmRandy says:
aardvark:” Generally, the only truly high-risk group is those who have had any unprotected sex (including oral) with a person of unknown infection status within the last 3 months prior to donation.”
That’s a good point. The question is whether you ever had sex with another male since 1977. It’s extremely unlikely that a person could have had sex in 1978 with an infected person and remain to this day without any symptoms or having it discovered. The question, should it remain, should only be since the outer limits of when HIV manifests itself with symptoms without treatment. If it normally takes three years, and the few outlying cases are at five years, and almost none beyond that, then the question should ask whether you had sex within the last five years.
Surely, if people are only concerned about the safety of the blood supply, there should be no objection to that.
May 5, 2010, 5:28 pmJack Marshall says:
Another example of how the perception of discrimination has been elevated above all other values, despite logic, practicality, and reasonableness. Kind of like decreeing that avoiding the possibility of profiling trumps any possibility of controlling illegal immigration. Sometimes the mistreated few need to suck it up and do what’s in the best interest of everyone else, instead of insisting on every last drop of grievance collection. That’s called “perspective” too.
May 5, 2010, 5:45 pmJohn_R says:
“Now I’m not sure whether the FDA policy is sound.”
Professor Volokh clearly supports the bigoted policies of the FDA on blood donation.
-Harvard University
May 5, 2010, 5:49 pmMax Power says:
All of the talk about how this policy has a “scientific basis” is fairly galling. While I’m not a statistician, a back-of-the-envelope calculation appears to show that the policy is almost surely causing needless deaths.
It appears that the false-negative rate for HIV testing is in the neighborhood of 0.003%. Let’s assume that 3% of men in this country are gay, for an American-gay-male population of about 4.5 million. Let’s assume that about 3 percent of them would give blood in any given year if they were allowed to (i.e., the rate at which the U.S. population in general donates). That’s 135,000 gay male blood donors per year. If the false negative rate is three in one hundred thousand, that means there will be no more than 4 expected false negatives each year when these men’s blood is tested for HIV, as all donated blood is; it will likely be fewer than 4, as not all gay men have HIV. Thus, at most, 4 people each year would contract HIV (which, while most unfortunate, is no longer necessarily a death sentence) as a result of lifting the gay-blood ban. Do more than 4 people die each year in this country as a result of shortages of donor blood? I would imagine that the number is significantly greater.
In any event, it appears entirely probable that this policy actually killing people, notwithstanding differential HIV-infection rates in the gay and straight populations.
May 5, 2010, 5:53 pmSandy says:
A student club did hold a blood drive a block from campus when this ban was first made.
May 5, 2010, 6:09 pmepluribus says:
I’m generally in favor of anti-discrimination policies, including anti-discrimination policies that protect gays. Discrimination is justified when it furthers a legitimate non-discriminatory concern, in this case health. Further, the policy does not discriminate against gays per se, but against men who have had sex with other men since 1977. These groups may overlap, but they are not identical.
May 5, 2010, 6:10 pmOpenVolokh says:
I am not sure what this means? Are you suggesting that stage 1 screening should be eliminated entirely? Because stage 1 screening will always be very imprecise if it is done at all. I think despite the flaws, stage 1 screening improves the final outcome. So, it might make sense to not accept blood from people who have travelled to X country during time period Y, even though there will clearly be many good donors in this group, and the group you do not exclude will have many bad donors.
I think more charitably, you mean that this particular imprecise screening method may be so imprecise, that it should not be preserved. That may be right. But to say that this sort of method conceptually could have not possibly have merit would be off.
Look, if stage 2 testing were perfect, then stage 1 screening wouldn’t matter. But stage 2 testing isn’t perfect. So stage 1 screening, in an admittedly imperfect way leads to false negatives.
Basically, think of it this way. There will always be some error. But as far as our blood supply goes, Type I error (false positives identifying blood as contaminated that isn’t contaminated) is much less harmful than Type II error (false negatives identifying blood as safe that in fact contaminated). The crude screening mechanism at stage 1 is basically designed to INCREASE Type I errors in order DECREASE Type II errors. That is usually a worth trade-off (assuming no dangerous shortages in the blood supply) because it is Type II errors that lead people to receive contaminated blood.
If you are arguing that, in this particular case, screening out gay men is not an effective means of trading off Type I error for Type II error, that is certainly possible. If you are arguing that conceptually it couldn’t possible be an effective means, then you are simply wrong.
May 5, 2010, 6:19 pmKatahdin says:
How do you feel about the lifetime bans for IV drug abuse, leukemia that was years in the past, and so on? Or the lifetime ban if you ‘have ever taken money, drugs or other payment for sex since 1977′. If the proverbial Nice College Girl said, even once, in 1980, ‘sure, I’ll sleep with you for a hit of that killer Maui Wowee’, she’s banned for life.
Occam’s razor seems to point to an abundance of caution rather than an attempt to discriminate. After all, IV drug users are banned even if their last use was prior to 1977. The rules seem drawn on the ‘better to exclude 100 healthy pints than include one infectious pint’. Although stocks sometimes run low, we aren’t actually running out of blood, AFAICT, ever. That doesn’t argue for relaxing the standards. In fact, I’d argue that that is exactly the optimum level of caution: if stocks didn’t sometimes run low, we should be even more restrictive.
May 5, 2010, 6:20 pmOpenVolokh says:
I tend to agree with this point. But I am ignorant concerning what the counter argument would be. Absent knowledge of the counter argument, I very tentatively agree with you. But I would be open to change my position based on an argument that addressed this point.
I think we basically agree on the fundamental point, which is that safety is the primary concern. Everything else is a matter of details. It is certainly possible that the FDA should adjust its on this policies — this is not a perfect institution.
May 5, 2010, 6:25 pmOpenVolokh says:
Occam’s razor is often abused, and this is another example. It is a rule of thumb. Nothing more. It should only be used (if at all) when evidence for two propositions A & B are approximately equal and you absolutely MUST make a decision about which one is correct for a particular purpose.
Occam’s razor is a tentative heuristic for making tentative judgments when such are necessary for taking some action. Not a tool for sweeping universal judgments or discounting actual evidence.
May 5, 2010, 6:29 pmOpenVolokh says:
This is just ridiculous. This is about the least persuasive way possible to address someone’s genuine concern about discrimination.
May 5, 2010, 6:31 pmStan says:
The thing about these “bans” that has struck me as a little bizarre is they do not seem scientifically effective in protecting the blood supply, as they rely only on a social discouragement not to donate. So how scientific are they, and are they merely, false security, feel good stuff?
May 5, 2010, 6:32 pmMalvolio says:
Just a minute there, Chester. Let’s be clear: political correctness is the only consideration here. The safety of blood supply versus the availability of blood is a matter of interest to a small group of technicians, none of whom is here.
I can’t donate blood, because I spent time in Burma. Do I give a shit? No. Nor do the people on this thread barring because of BSE or tattoos or pretty much any other reason.
Why do Randy and SJS and them get all worked up about one particular exclusion? Because that exclusion (men who have ever had sex with other men) maps reasonably well into an existing bigotry.
It might behoove the FDA to, in the interest of improving blood availability, revisit the issue of exactly how to manage the fraction of HIV-contaminated blood. But let’s not pretend that we suggesting that they do this from our own interest in health issues — we’re just trying to not appear bigoted.
May 5, 2010, 6:39 pmPersonFromPorlock says:
If a church, goat and chicken marry, would that be a ménage à croix?
May 5, 2010, 6:41 pmEvilDave says:
My law school wouldn’t allow military recruiting, but it would allow gay-only job fairs.
May 5, 2010, 6:41 pmSomehow they justified this under their anti-discrimination policy.
.
While we’re at it, aren’t the same people writing these anti-discrimination policies usually the people telling us that “the science” of global warming is settled and anyone questioning the science is an ignorant bigot?
Apparently when the government approved science conflicts with their political beliefs they feel free to question the science.
OpenVolokh says:
Stan, see my discussion above. The point is to increase Type I errors (which decrease the blood supply) in order to decrease Type II errors (where people who need blood transfusions end up with contaminated blood).
This is not about false security or feel good stuff. Although, no one is saying that FDA is perfect, there are actual reasons for these decisions.
May 5, 2010, 6:51 pmMike S. says:
There is a huge difference between changing such a policy based on assessment of new data (whether because because the Red Cross has requested it or because there is a periodic reassessment) and doing so because of political pressure. The latter is reprehensible–safety of the blood supply, not politics of any kind should drive the regulation.
I know that the deferral from cancer was recently decreased; I infer from this that the criteria are in fact reassessed from time to time. If in fact such a reassessment shows they should relax the criteria about male-male sex (or living in the UK or …), they should absolutely do so. if the data don’t show that, they shouldn’t.
Some things should not be driven by politics.
May 5, 2010, 7:01 pmRandy says:
epluribus: “Discrimination is justified when it furthers a legitimate non-discriminatory concern.”
Agreed. but then you say ‘in this case, health.” Unfortunately, the Red Cross disagrees with you. They say that there is no legitimate concern for this policy. Who are you going to believe? Them, or Jack Marshall?
OpenVolokh: ” But as far as our blood supply goes, Type I error (false positives identifying blood as contaminated that isn’t contaminated) is much less harmful than Type II error (false negatives identifying blood as safe that in fact contaminated). ”
Agreed. Can anyone identify any cases of someone who has unknowingly had the HIV virus in their blood for thirty years without it being detected or showing itself through symptoms? If the answer is no, then certainly the ban shouldn’t extend all the way back to 1977.
If there is no medical basis for the ban, then it shouldn’t exist.
Katadhin: “How do you feel about the lifetime bans for IV drug abuse, leukemia that was years in the past, and so on? Or the lifetime ban if you ‘have ever taken money, drugs or other payment for sex since 1977′.”
Again, if there is a medical basis for the ban, then keep it. If not, then get rid of it. Why is this so hard to understand?
“Occam’s razor seems to point to an abundance of caution rather than an attempt to discriminate.”
Then you need to ban everyone, because everyone falls into some group that has some people in it with HIV.
“After all, IV drug users are banned even if their last use was prior to 1977. The rules seem drawn on the ‘better to exclude 100 healthy pints than include one infectious pint’. Although stocks sometimes run low, we aren’t actually running out of blood, AFAICT, ever. That doesn’t argue for relaxing the standards. In fact, I’d argue that that is exactly the optimum level of caution: if stocks didn’t sometimes run low, we should be even more restrictive.”
Then why does the Red Cross disagree with you? Apparently, you know more about the how our blood supply works than they do.
Malvolio: “Just a minute there, Chester. Let’s be clear: political correctness is the only consideration here.”
Really? The ONLY reason the Red Cross has been lobbying the FDA to change the rule since at least 2007 is because of PC? They don’t give a damn about the blood supply? Or that fact that they make a lot of money collecting and selling it, which would mean that they have an interest in making sure it is safe? That’s pretty ballsy of you to assume that.
“Why do Randy and SJS and them get all worked up about one particular exclusion? Because that exclusion (men who have ever had sex with other men) maps reasonably well into an existing bigotry.”
Because I would like to give blood. I wanted to give blood after 9/11, or after any other calamity, but I can’t. And the Red Cross and other organizations tell me that they want my blood. And I am negative, so my blood is safe. And my mother had leukemia and needed blood transfusions. And I know others who need blood for chronic illnesses. So who is being hurt by this ban? Any medical professional will tell you that there is often a shortage of blood at any one time.
May 5, 2010, 7:01 pmjab says:
Count me in as another gay man who agrees with the FDA policy.
I’m much, much, much more concerned about equality in marriage, military service than this issue.
The blood screening is already pretty damn good, but I am more than willing to
forgo blood donation so that the public has confidence in the blood supply.
But, as has already been pointed out: there is no enforcement mechanism for the ban.
May 5, 2010, 7:06 pmIf you are gay, have regularly been tested for HIV and know that you have not engaged in
risky behaviors, you CAN donate blood… nothing prevents you from the “white” lie of
denying you are gay to the blood collector… they have no way of checking.
OpenVolokh says:
This is right Jab. You could lie. But recall that stage 1 screening isn’t meant to be perfect. It is an admittedly crude screening mechanism. It obviously is ethically problematic for someone to lie, but such lies will not undermine the point of the screening since most people will not lie. Such lies would tend to it make the system a little bit less effective on the margins.
May 5, 2010, 7:13 pmOpenVolokh says:
Agreed.
May 5, 2010, 7:15 pmcaliforniamom says:
Maybe if gay men feel so passionately about giving blood despite the risks they would be willing to assume all liability to anyone infected with AIDS from the blood they donated.
May 5, 2010, 7:23 pmepluribus says:
John_R:
EvilDave:
I guess I’m about as opposed to bigotry as the next guy, but isn’t the word “bigot” tossed around a little too loosely in some of these discussions?
May 5, 2010, 7:37 pmDay Break says:
@Randy,
Not so fast.
Lets provide some color to that statement:
While Sweden does allow gay men to donate blood (with caveats) only if said gay men say they haven’t had sex with other men in the past year. That’s because Swedish health officials — who will continue testing all donated blood for contaminants — will still ban anyone who engaged “sexually risky behavior,” a list that still includes anal sex with men.
In Australia, currently, men who have had homosexual sex within a 12-month period are banned from donating blood. Being gay doesn’t mean that you would be deferred under this policy. The people who are deferred under this policy are males who’ve had sex with males in the last 12 months. Males who haven’t had sex with males in the last 12 months are eligible. So it’s not “gay” blood that’s rejected as instinctively disgusting but ‘men who have sex with men’ and are therefore in a higher risk category, and of course the decision is based on the prevalence of HIV-Aids in that particular community.
@ Malvolio
To say political correctness is a not the “only” is just plain ridiculous.
The issue with HIV-AIDS is there’s still a window that even the most sensitive tests cannot detect. Therefore the main concern is the safety of the blood supply. The Red Cross has a legal obligation to ban higher risk donors because, in the absence of conclusive data on the risk associated with low-risk gay sex, the Red Cross must act on a worst case scenario basis.
Lastly, the issue of discrimination is not a genuine concern. Not being able to donate blood is not infringing upon your human rights. Conflating donatng blood with legitimate forms discrimination which deprives you of health and opportunity is hollow.
Instead of calling people “bigots” when there are legit scientific concerns how about you propose a credible solution.
May 5, 2010, 7:41 pmMac says:
You can go to the FDA web site here and see the FDA’s reasoning on banning sexually active males, if you are interested.
Now, I would like to see what the Red Cross has to say about the specifics of the FDA’s objections.
The Red Cross has had plenty of bureaucratic bungling in the last 10 years, (really, much longer), and has a monetary interest in getting as many donors as possible so I will not take their word as gospel about anything.
May 5, 2010, 7:45 pmMac says:
Here are several reasons why there are issues. Not all are what one would think. Cost, as you can see, is definitely a factor and justifiably so especially given the other factors enumerated below. This is from
http://www.thebody.com/index.html which is an HIV resource.
p24 or HIV RNA?
A report in the Annals of Internal Medicine (Jan 2, 2001) makes clear some of the differences between early detection with HIV RNA assays and with p24 tests. While HIV RNA testing detected all early infections in their study, p24 detected only 88.7%. For the purposes of blood screening, this obviously leaves the window slightly open. For clinical use, the cost of an HIV RNA test is $100 compared to $20 for p24. More significantly, for the clinic and for blood screening, is that HIV RNA, while highly sensitive, is less specific about what it detects than the p24 assay. This means that a greater number of people tested for HIV RNA will have falsely positive results. Individuals who test positive for HIV RNA will need to be counseled and tested again before they can be correctly diagnosed. The authors comment, “. . . false-positive results on HIV RNA assays require follow-up testing and extensive post-test counseling and are associated with substantial psychological distress.” As it stands, the extra counseling burden, additional assay costs and an unacceptable risk of mistakenly telling people they might be infected keep us from closing the blood-safety window entirely.
May 5, 2010, 7:52 pm– Daar ES, et al. Diagnosis of Primary HIV-1 Infection. Ann Intern Med. 2001;134:25-9.
Randy says:
California Mom: “Maybe if gay men feel so passionately about giving blood despite the risks they would be willing to assume all liability to anyone infected with AIDS from the blood they donated.”
Sure, no problem. So long as it is applied to everyone, not just gay, who give infected blood. Or do you want the liability only to apply to gay men and exclude others?
Day Break: “While Sweden does allow gay men to donate blood (with caveats) only if said gay men say they haven’t had sex with other men in the past year”
Thanks for the clarification. And that actually supports my contention — you CAN have safe blood and still allow gay men to donate. And if their only concern was PCness, then they wouldn’t have the current policy. That strikes me as sane, sensible and medically well grounded.
But that isn’t what some people want. What it is they want, I don’t know, but it certainly isn’t a sane blood policy. Perhaps California Mom can enlighten us on a better policy than what Sweden and the Aussies have?
May 5, 2010, 7:53 pmBT says:
Some of you guys have made me feel guilty for not giving blood for a few years. I am O negative. The blood banks love me. Hey maybe I can trade some for that dessert Volokh posted today!!!
May 5, 2010, 7:55 pmRandy says:
Day break: “The Red Cross has a legal obligation to ban higher risk donors because, in the absence of conclusive data on the risk associated with low-risk gay sex, the Red Cross must act on a worst case scenario basis.”
Yes. So the number of men who had sex with other men prior to even 2000, contracted the virus and remain clueless about having it are extremely small. They are actually low risk. So why not allow them to donate? Why not do with the Sweden and Aussie model? Why is that policy flawed, or presents an unnecessary risk?
May 5, 2010, 7:59 pmptt says:
The FDA seems to utterly unaware of tense. Men who have sex with men isn’t the same as men who have ever had sex with men.
May 5, 2010, 8:03 pmptt says:
If the FDA really operated on a “worst case scenario” they would have different cut-offs for different races and different cut-offs for men and women, and they would give lesbian donors not just a cookie, but an elaborate cake for being so safe.
May 5, 2010, 8:09 pmMike S. says:
Randy: Sure, but suppose you are right (although data would be better than assertions) and they change the policy to excluding men who have had sex with other men in, say, the last 2 years rather than since 1977. That will still exclude most gay men. It would make a bigger difference to straights who may have experimented once or twice or to abuse victims. They don’t seem to be the ones complaining, perhaps because they are not an organized lobby. I have no statistics, but I do not imagine there are enough gay men who have been celibate for some length of time between 1-3 years to make a noticeable difference in the blood supply.
But none off this really addresses the point of the initial post, which is that boycotting blood drives is just wrong. the criteria for donations ought to be driven by data, not politics. One has to balance the risk of shortages against the risk of causing serious illness by transfusing blood bearing an infection. And the FDA ought to set criteria based on the best available data, not political pressure.
May 5, 2010, 8:32 pmMac says:
“Others” are not complaining about being excluded, Randy, nor are “others” advocating for a change in safety standards.
May 5, 2010, 8:33 pmKatahdin says:
FWIW, ‘running short’ is not the same thing as ‘ran out’. I give blood routinely when the Bloodmobile comes around, so the bloodsuckers know where I live :-). When they run short, usually over the holidays, they call me up, and I drive over to their facility and donate. While I’m there, I ask how short things are. They say things like ‘we’re down to a 4 day supply of Z positive’. They have never said ‘we actually ran out for a while’. Running out would have bad outcomes, but AFAICT nearly running out just means they pester people like me :-).
I’m happy to be corrected by anyone with more detailed knowledge.
May 5, 2010, 9:18 pm~aardvark says:
Excellent point. The number of false negatives among heterosexual donors dwarfs the potential number of homosexual donors who might be infected.
May 5, 2010, 9:23 pmThrobert McGee says:
Whoa, does the Swedish policy use the specific language “anal sex with men”?
If so, that’s probably a good idea — since whether you’re male or female, receptive anal sex is a much worse HIV risk than male/male mutual masturbation. In fact, a LOT of different sexual behaviors, both homo and hetero, are much worse HIV risks than “MSM” mutual masturbation — which is still, nonetheless, a type of men-having-sex-with-men.
(Male/male fellatio falls into an intermediate risk category — it rarely transmits HIV, but can be an efficient route for spreading other STIs within the MSM demographic. So arguably, men who have oral sex with oral men should also possibly be discouraged from donating, but there’s no reason at all to ban men who only do non-penetrative sex like mutual handjobs with other men.)
Specifically singling out “anal” and/or “MSM anal” would offend the sensibilities of some gay activists, but it would be less sweepingly discriminatory than the current phrasing, and also scientifically sound.
May 5, 2010, 9:30 pmDay Break says:
@Randy:
As far as whether Sweden’s or Australia policy is really medically sound or an error that was arrived at as the result of political lobby or the result of financial self interests is a question time will have to answer.
The fact of the matter is the data is limited on either the Sweden’s or Australia policy or the human subsets of gay community, which all may exhibit different behaviours and risk factors. The research that has been done has been done on areas where there is a higher risk. So what is needed is more of a gay community lifestyle study where it assesses the greater gay population with the aim to understand which gays are safer i.e. which have monogamous relationships and practice safe sex. Maybe the data of such a study would challenge the current FDA ban, maybe the data from such a study challenges the Sweden/ Australian Model.
@PTT:
To respond to your statement, I am going to pull an applicable quote from Professor Volokh concerning the cutting off of blood donations by race.
Eugene Volokh says:
Eugene Volokh
March 16, 2010 2:21 pm
http://volokh.com/2010/03/16/relative-risks-of-hiv-infection-among-gay-and-bisexual-males/
So in both cases of heterosexual and gays more research is needed.
May 5, 2010, 9:46 pmMichelle Dulak Thomson says:
I don’t know how long Creutzfeldt-Jakob Disease has been known to incubate at longest before manifesting itself. But I rather think that if I were likely to develop it, I’d have it by now, more than twenty years after my only long stay in the UK.
The CJD Foundation’s Web site says that there are 250-300 cases diagnosed per year in the US, of which 85% are “sporadic” (meaning no causal agent is identified).
It depends what assumptions you make, but you don’t even need the back of the envelope to see that the chances of a sexually-active gay man carrying HIV are orders of magnitude over the chance of a short-term resident in the UK carrying CJD. I’m not arguing for either ban, only saying that if we wanted to drop only one of the two, I think I know which is the sillier.
May 5, 2010, 10:32 pmDay Break says:
@Throbert McGee:
I may have miffed the phrasing, but the policy of the Swedish Blood Centre (SBC) is that it will permit donations by any gay man who has not had sex with a man for at least one year. I am not sure whether or not that policy only applies to anal sex or other forms of sex as you pointed out.
The specific wording from the SBC’s website is when men have “sex with another man” you are not permitted to donate blood. Note: I think the website is not 100% up to date.
Information regarding Sweden’s blood donation policies is available in Swedish on the website of the Swedish Blood Centre at http://geblod.nu.
May 5, 2010, 10:38 pmThrobert McGee says:
Thanks for the clarification about the Swedish policy, Dan.
One other thing: I wrote that “specifically singling out [male/male anal sex] would offend the sensibilities of some gay activists.”
Which is true, but it occurs to me that singling out just this one particular “homosexual act” as high-risk could also be seen as giving an implicit green light to low-risk acts, like fellatio and handjobs — which would offend the sensibilities of social conservatives, who prefer that homosexual men be completely celibate if we’re going to insist on breathing oxygen at all.
And thus we get stuck with overly broad and not-very-informative phraseology like “homosexual acts” and “men who have sex with men.”
May 5, 2010, 11:24 pmAndy says:
There is another moral argument. Presumably any gay man donating blood does not know that he has HIV/AIDS. Let’s say the screening process is 99% accurate and that all of the blood that is donated is transferred and that every “bad” transfer causes infection. (I am sure it is far more accurate, that some blood is not used before it is too old, and that infections are not automatic.) In this worst case, 1 person is infected with HIV, while 99 people are found to have HIV and are notified. Since these people are giving blood, I’m guessing they are somewhat health conscious and/or empathetic. Most of them will surely seek treatment and attempt to not spread HIV to their partners. So I think far more people will be saved than harmed by allowing blood donation.
May 5, 2010, 11:24 pmAndy says:
There is another moral argument. Presumably any gay man donating blood does not know that he has HIV/AIDS. Let’s say the screening process is 99% accurate and that all of the blood that is donated is transferred and that every “bad” transfer causes infection. (I am sure it is far more accurate, that some blood is not used before it is too old, and that infections are not automatic.) In this worst case, 1 person is infected with HIV, while 99 people are found to have HIV and are notified. Since these people are giving blood, I’m guessing they are somewhat health conscious and/or empathetic. Most of them will surely seek treatment and attempt to not spread HIV to their partners. So I think far more people will be saved than harmed by allowing blood donation.
May 5, 2010, 11:25 pmElliot says:
Why not? Simple. People don’t want to get HIV. They think a primary method of transmission is gay sex. They think gays opposed reasonable public health recommendations in the Eighties for political reasons. So, they don’t believe what gays tell them about HIV. They don’t care if gays like it or not. They see no risk in prohibiting gay contributions. They don’t care if they are right or wrong. They would rather play it safe.
You might disagree, or you might not like it, but that’s the answer.
May 5, 2010, 11:32 pmKatahdin says:
The unimpeachable source thinks it can be as long as thirty years. Given when mad-cow surfaced, that may be ‘thirty years so far’. There have been cases of Kuru 50 years after funeral cannibalism was banned, although it is of course possible the ban was ignored.
This page says the 2002 blood donor restrictions on people who had traveled to Europe was expected to diminish the donor pool by 7%, which offers some perspective on the risk vs. donor reduction tradeoffs that are thought to be appropriate. (the large reduction was expected because of service members and their families)
May 5, 2010, 11:56 pmarbitrary aardvark says:
I think the number of men who have had sex with men (at any age, but after 1977) is closer to 30% than to 5%. the population of people who engage in homosexual behaviors (not always consensually) is larger than the population that identifies as gay or bi (lesbian etc.) It is generally a mistake to overgeneralize; to assume that all gays or all negros or all x are high risk.
May 6, 2010, 12:17 amThe boycott here is not just ideals; there are pragmatic aspects that cut both ways. The FDA regs are overly restrictive resulting in a perpetual shortage with the result that people die. The main problematic restriction is the ban on paying people to donate blood; otherwise the market would kick in and there would be no shortages, just price fluctuations. I would welcome any empirical data on whether purchased blood is more safe or less safe, quality-wise. gtbear at gmail. Unfortunately I didn’t keep a copy of a paper, Rights and the Market in Blood, that I wrote in 1979.
I’ve self-identified as bisexual since 1977, i’ve had unsafe sex several times (but not hundreds of times, 5 men 2 women) but I’ve tested negative about 40 times since then – I work in medical research and get tested about monthly as part of the protocol. But they wouldn’t let a guy who my wife was cheating on me with, donate, cause he’d had (safe) sex with a person who had sex with a bisexual.
Hyper-politically correct campus policies can seem silly, but they are part of a memetic struggle in a world where violence against gays kills enough people to be a genuine public health concern.
As I understand it, EV is arguing that these life and death decisions should be made via central planning from DC. I can envision a more polycentric approach involving insurance companies, markets, litigation, and so forth, as potentially being more efficient in resolving questions of risks and benefits.
Day Break says:
@Throbert McGee
I have yet to see social conservatives have this type of conversation. Perhaps the reason for the vague language has more to do with a lack of data on which type of sex acts are more risky given the target population and indeed they have a blanket policy. Or maybe they are being vague on the websites as marketing/ dialogue ploy to get you to inquire as to which sex acts are allowable and permissible for donation candidates. Or none of these reasons apply and people played follow the leader with words and phrases.
May 6, 2010, 12:37 amRandy says:
Day Break: ” They don’t seem to be the ones complaining, perhaps because they are not an organized lobby. I have no statistics, but I do not imagine there are enough gay men who have been celibate for some length of time between 1–3 years to make a noticeable difference in the blood supply.”
But you agree it would be a more rational policy, right? Gays aren’t saying that every gay man should be able to donate blood. What we are saying is that you have to have a policy that actually works. A workable policy is one that allows gays who are negative to give blood, and certainly those who have been celebate in more than two years would qualify. And no, not all gay men are sex crazed animals who constantly have sex. Some are in fact like straights and don’t have much sex. And there should be a way to allow gays, or anyone, to donate blood if their blood is safe.
“But none off this really addresses the point of the initial post, which is that boycotting blood drives is just wrong.”
Why is that? Every boycott has an element of sacrifice to it. When blacks boycotted the bus systems, it hurt themselves quite a bit. But they were willing to make the sacrifice for a future that would be better for everyone.
In this case, the future will be better, because the pool of donors will increase. That’s good for everyone.
Elliot: “They don’t care if they are right or wrong. They would rather play it safe.”
So in other words, our policy should be driven not by medical research but by political pressures. But I though everyone was against policies based on political pressures. I’m so confused!
May 6, 2010, 12:53 amRandy says:
Day Break: “I have yet to see social conservatives have this type of conversation.”
Ha! Then you need to get out more. For some social conservatives (who tend to be more moralistic when it comes to all forms of sex), first don’t want sex talked about at all unless the subject is abstinence. It’s usually okay within marriage, but not always, as the Catholic church teaches. And any non procreative sex is off limits in many religions. For these people, blowjobs and hand jobs are strickly forbidden. In fact, masturbation is, for some people such as Mormons and Catholics, forbidden for everyone in all circumstances.
So any statement that doesn’t expressly forbid these types of sex are viewed as promoting them. (I know, it’s weird, but this is how they argue.) And yes, many of them argue that the only acceptable homo is the celebate and virginal homo.
May 6, 2010, 1:00 amTGGP says:
I don’t think the military defends us. I think they cause chaos and raise the price of oil. But I’d rather they did so efficiently. Since they’re public employees, I don’t regard efficiency as merely a choice but an obligation on their part that the public should hold them accountable to (if not in the manner engaged in by these schools). A private law-firm has no such obligation, and I don’t see why I or anyone else outside it should have any say in how they go about their business.
May 6, 2010, 1:16 amDay Break says:
@Randy
You misattributed this quote to me:
The quote belongs to Mike S. I will still take a stab at your post.
Once again, not so fast, you cut the corner so fast you turned a square into a circle. You have to remember the Civil Rights movement was based on a moral position that all persons should be treated equal and intrinsically worth the same. Yes, African American boycotted, but they also had a political component to support their efforts. In the context of the Civil Right movement morality was the “data” used to prove the necessity for legal change. With regards to the blood donor issue, other than a boycott which is normally considered a one-time affair there is no scientific data for those that want to relax the ban can marshal as proof as to why the ban should be relaxed. Sure you can say Sweden and Australia have relaxed their standards, but does not mean the policy is correct because again there is no data to prove the case as to why that should be.
So yes, boycotting a blood drive that places a restriction on a thus far proven high risk candidate pool based on scientific research without offering competing scientific research is wrong and puts lives at risk.
May 6, 2010, 1:42 amClayton says:
If the FDA is so concerned about collecting as much blood as possible (and saving lives) then it shouldn’t implement arbitrary and bigoted bans on who can donate.
Black heterosexuals also have very high rates of infection, shouldn’t they be banned to? And not only them, but anyone who has sex with them. Oh wait, thats racist. Its wrong to suggest all black people have diseased blood, gays though, no one minds THAT stereotype.
Schools have every right to ban activities which actively label some of their students as potentially diseased based on a stereotype.
Its just like banning military recruiters, sure it suppose there is some vanishingly small impact on national security, but they don’t want gays. If they really wanted more soldiers they wouldn’t be arbitrarily banning people based on bigotry.
May 6, 2010, 2:32 amjaydestroyy says:
The principle underlying the civil rights movement is the same as the gay rights movement: all persons should be treated equal. As we all know from US. v. Virginia, one aspect of equal protection is that individuals should not be judged by over-broad stereotypes of unfair generalizations regarding their membership in one minority group or another (gender, race, etc).
This is clearly a case of overbroad stereotypes leading to the law’s overreach. I find it curious that everyone who has argued that the policy that discriminates against gays has yet to affirmatively respond to whether they believe blacks ought to also be proscribed from donating blood because blacks as a group of persons have a statistically higher chance of being HIV-positive than other races, such as whites, asians, or hispanics.
So, should we proscribe blacks from donating blood in the interests of “public health”?
May 6, 2010, 2:37 amThrobert McGee says:
Hmmm. On doing a Ctrl+F “find in page” search just now, I notice that nobody in the thread has brought up the issue of “barebacking” — i.e., condomless anal sex — and its apparent resurgence among gay men in the last decade or so.
Whether or not the actual practice of anal sex without condoms has dramatically increased is difficult to say*. However, I can gah-rown-tee that the “social acceptability” of condomless anal sex (and the corresponding UN-acceptability of saying “Barebacking?! Are you freakin’ retarded?!”) has been on a steady rise for years in gay male circles.
So, if my assertions here are correct and gay men are doing an increasingly worse job at self-policing when it comes to risk reduction, then the ban on gay men donating blood looks a bit more rational.
* Although the CDC estimates that there are around 30,000 new HIV cases attributable to male/male sex each year. And the vast majority of these must be the result of barebacking, since fellatio rarely transmits HIV and condoms are effective most of the time.
May 6, 2010, 4:02 amMike S. says:
Randy:
In the bus boycott, the Blacks who boycotted the buses sacrificed themselves to harm the entity that was acting in a discriminatory fashion, namely the bus lines. With the blood bank boycott, the boycotters are demanding that other people (either, those in need of a transfusion or who will have to delay medical treatment until blood is available or those who will have to donate to make up the difference) make the sacrifice. And their goal seems to be not the reasonable one of demanding that the FDA reassess their criteria based on the best available data, (something I suspect they are already doing) but the unreasonable one of demanding that the FDA ignore the risks associated with having sexually active gay men donating blood. And they are not boycotting the FDA but the local blood bank.
May 6, 2010, 6:31 amKatahdin says:
According to the figures posted in this thread, gay men have an HIV infection rate 44 times that of straight men vs. 5 times for blacks.
44 is much greater than 5.
The various criteria exclude all but 37 per cent of U.S. donors. The People Who Can’t Donate Party has a big tent.
Maybe the restrictions make sense, maybe they don’t. It’s not my area of expertise. But I don’t see strong evidence that they are irrational homophobia either.
May 6, 2010, 9:00 amChristy Clinton says:
For any who are interested, here is the link to the FDA’s rationale on the subject.
May 6, 2010, 10:59 amMax Power says:
Michelle, your point that “the chances of a sexually-active gay man carrying HIV are orders of magnitude over the chance of a short-term resident in the UK carrying CJD” is correct, but also beside the point. There is a blood test for HIV, to which all donated blood is subjected, while there is no test whatsoever for CJD. So the proper questions are: (1) “what is the chance of a sexually-active gay man carrying HIV butfalsely testing HIV-negative?” and (2) “what is the chance of a short-term resident in the UK carrying CJD?” According to my non-exhaustive Web research, about 12% of gay men are HIV+, and it appears that the false-negative rate of HIV testing is approximately 0.003%. That means that if every gay man gave blood, 0.00036% of them would carry HIV but test negative for it. Meanwhile, according to Wikipedia, the worldwide incidence of CJD is one case per million people, or 0.0001%. This is the same order of magnitude as the gay statistic. But the incidence of CJD in the UK is likely greater than it is worldwide, so the two relevant statistics may in fact be the same, or the CJD statistic may in fact be higher than the gay statistic. And, of course, keep in mind that CJD is invariably fatal, while HIV, while debilitating, is relatively manageable today with proper care. So it’s not at all clear to me which ban is actually sillier.
May 6, 2010, 11:02 amElliot says:
Of course our policies are driven by political pressures. Confused? What do you think drives them?
May 6, 2010, 11:21 amThrobert McGee says:
From the link:
Note that the relatively high transmission rates among MSMs of both Hep-B and HHV-8 are known to be associated with a very specific sexual practice — namely, anilingus (“rimming,” in slang). Hep-C, on the other hand, is probably most often spread like HIV — by semen-to-blood contact during anal intercourse.
So, in principle, the questionnaires could be reworded to exclude anyone who goes anywhere near “the brown starfish” during sex with a partner, regardless of gender or sexual orientation.
May 6, 2010, 1:15 pmptt says:
If you go that quote, you’ll see quite a few responses from me about both EV’s statistics and the larger issues. I’d repeat them here, but I get the feeling there’s not much point.
Riskwise, somewhere along the line from men who currently have sex with men and men who had one handjob back in college in 1978 lie a whole lot of black women who currently have sex with black men. Their risk is far higher than that of the 1978 handjob contingent. They’re not banned from donating.
There are ways to measure risk that are far more accurate than the current broad exclusion. As someone pointed out above, one homosexual encounter by a bisexual who has since been tested for HIV dozens of times seems like an odd disqualification. In fact, it almost makes having sex with another man sound like a permanent taint.
May 6, 2010, 2:16 pmDay Break says:
@jaydestroyy
Quoting myself:
Excluding black donors would prohibit a large potential donor pool and the problem of exclusion would be more acute on the blood supplies of cities where there is a majority black population such as D.C.
Really, this is a scientific matter, where is your competing data that shows the ban is irrational? Until you answer that question, your blowing smoke, grasping at straws and putting peoples lives at risk.
May 6, 2010, 3:51 pmDay Break says:
@PTT:
You could be 100% correct, but Like I told Randy and Jaydestroyy you have to offer competing and fresh scientific research that concludes the ban should be lifted or modified. Without research that reaches the conclusion the ban should be lifted makes your argument thin. Get the research and put this matter to bed!!
May 6, 2010, 4:06 pmmalclave says:
I can sympathize. I’m on permanent deferral because of positive testing for HBcAb (which I’m certain is a false positive, since I haven’t had hepatitis).
Considering my workplace gives up to 2 paid days off per year for donating blood… these silly FDA rules meant to ensure a safe blood supply is costing me money. If I had the proper “I’m a victim” attitude, I’d sue.
May 6, 2010, 6:26 pmmalclave says:
While I can’t say with absolute, 100% certainty… I strongly suspect that if members of this “handjob contingent” contest the exclusion with the pathologist in charge of the blood donation center they’ll be told that they can safely answer “no” to the question regarding homosexual contact.
May 6, 2010, 6:32 pmptt says:
If you were the FDA and I were the opponents of the ban, I’d collect all the research and give it to you. As I am just a commenter here, I can only point out that the FDA remains rather isolated in its understanding of the science and a lot of other interested parties like all the blood collection organizations disagree with them.
As to your comment about racially based bans excluding too many potential donors, again see the thread you linked to. I posted on that point. While racial minorities make up large portions of some cities, even constituting majorities in some of them, their participation in blood drives is disproportionately small by a large factor.
May 6, 2010, 6:38 pmSan Jose State, Blood, and Misguided Ethical Absolutism « Ethics Alarms says:
[...] Correctly accusing the University of a complete failure of perspective—absolutism doesn’t permit perspective, after all—uber-blogger Eugene Volokh nails the foolishness of its ban: [...]
May 7, 2010, 12:12 amDay Break says:
@PTT:
Have you seen the “other interested parties” data? Is their position scientifically sound? Is their position the result of financial self interest? If you can say yes please point me and others to their research reports, that would be great. If not, you’re jumping on the “if they think its ok we should do it” bandwagon with no critical analysis of any scientific case studies because its fits your world-view.
Ok, let’s ban both Black and Gay blood, and then get better research to better understand the risk factors of both heterosexual and homosexual blood which is what I have been saying all along.
Quoting myself again:
“So in both cases of heterosexual and gays more research is needed.”
May 7, 2010, 1:54 amYour only interest should be getting the correct science, instead of riding the coat tails of trying to copy policies for African Americans donors, which may well be a risky policy and when things do not go your way playing the wounded dove. Advocate, lobby, fundraise, inform people, to get the science. But however you do get it, get the science!
~aardvark says:
Are you suggesting that public policy should accommodate every idiot? Or only those conservative idiots with unreasonable fears? Basically, everything you wrote above has absolutely nothing to do with public policy, but it could keep a rather large number of psychiatrists fed for quite some time if we only took paranoia as seriously as we treat minor depression. Stupidity, on the other hand, is not curable.
The reality is that a heterosexual male who is certain that only gay sex can result in HIV infection is far more dangerous, especially if he engages in other high-risk behavior.
May 7, 2010, 2:29 am~aardvark says:
Oh, man! I missed this point until you mentioned it! It is quite ironic for someone who generally advocates avoidance of government involvement in most things to defer to Big Brother in this case. An honest libertarian certainly would not believe that private action–or, in this case, a public statement manifested through a private action by a public entity–should be trumped by central policy set by partisan government bureaucrats. And he certainly would allow for the possibility to affect behavior that is contrary to public policy because the entity, as a whole, disagrees with the policy. Come to think of it, it’s pretty funny, in retrospect. And, as I’ve said before, the local controls are minimal–there is no absolute prohibition, or even a direct restriction, on either private behavior or external facilitators of that behavior (that is, anyone outside the university can set up a blood drive and anyone within the university can donate).
May 7, 2010, 2:41 amElliot says:
No. I have suggested nothing. I’m answering Randy’s question about why the policy is in place. Do you disagree with my answer?
May 7, 2010, 12:46 pmMark F. says:
“Unfortunately, the Red Cross disagrees with you.”
Randy, you are aware of how most or all of the blood banks were resisting any screening of blood when AIDS was first spreading like crazy and many were even denying that it was spread via blood even as the evidence was piling up. This is well documented in “And The Band Played On.” So the blood industry has a lot to answer for.
However, I suspect AIDS testing has become so good that we can relax some of the restrictions in the interest of getting more blood.
Also, nothing stops anyone from lying right now.
May 7, 2010, 5:06 pmHugo Mendez says:
This is homophilia run riot!
May 8, 2010, 7:05 pmNo blood for you! | Moonage Political Webdream says:
[...] right. In order to force the Food and Drug Administration into accepting it’s gay agenda, they’ll just not allow anyone to donate blood. Now, think of the ramifications of what would [...]
May 10, 2010, 1:50 pmMoonage says:
It has to be in perspective. This is California we’re talking about. Berkeley banned blood and called for a boycott of all FDA products.
May 10, 2010, 2:00 pmanonymous says:
I just found this discussion; I had found an earlier discussion on Volokh on this topic, but it had been too long ago for me to bump it to the top (and this one is pushing it.)
I think the current rules are ridiculous, simply because of the “one experiment or being sexually abused when you were younger means you’re banned for life” clause that’s been mentioned. Not only that, but every future girlfriend or wife you have, technically, must go celibate (or something) for a year every time she wants to donate blood. So basically, if you experimented once when you were younger, or were sexually abused, you have to marry a woman who is uncomfortable with donating blood or is disqualified for other reasons.
(Yes, I know that you can lie on the questionnaire, but why should you be forced to?)
I would say the odds are pretty high that the two questions I referenced will be changed to something like “within the past year have you had gay sex with a man” and “if you are a woman, in the past year have you slept with a man who within the previous year had gay sex with a man.”
The reason I say “pretty high” is that the last time the FDA investigated this in 2007, their panel was only one vote short (7-6,) and currently their panel is more likely to be composed of members supporting a change like the one mentioned (20 senators, all Democrats, co-signed John Kerry’s letter to the FDA on this.)
The reason I do not say “a 100% chance” is that:
1) it appears that Clinton’s FDA also looked at this in 2000, and came up with the same 7-6 vote (although I don’t know if they were trying for something more expansive, i.e. allowing gays to donate pretty much freely; also, the country was different then, i.e. Lawrence v. Texas wasn’t decided on yet, gay marriage was ten years younger than it was now, etc.)
May 17, 2010, 2:24 pm2) Even gay-friendly Canada appears to have a lifetime ban for one experiment, and has upheld it recently.
3) Even if you consider Obama far-left, GLBT issues are one of the hardest issues to argue that he is far-left.