Seventeen U.S. senators and 62 members of the U.S. House sent a joint letter to Health and Human Services Secretary Sylvia Burwell on Monday asking her to take steps to lift the government’s policy of banning gay and bisexual men from donating blood.
The letter came less than two weeks after a Food and Drug Administration advisory committee, which was expected to make a recommendation on whether the FDA should change its policy of a lifetime ban on blood donations from men who have sex with men (MSM), decided instead to take a pass on the matter.
The joint letter by the lawmakers also came on the same day an FDA spokesperson said the FDA is deliberating over whether a change in the policy should be made but it has no “timeline” for deciding whether such a change should be made and what the change should be.
“As you know from our previous correspondence, we are steadfastly committed to ending the outdated MSM blood donation policy and moving forward with securing the nation’s blood supply in a scientifically sound manner,” the lawmakers said in their letter.
The letter was initiated by Sens. Tammy Baldwin (D-Wisc.), Elizabeth Warren (D-Mass.) and Tom Harkin (D-Iowa), along with Reps. Mike Quigley (D-Ill.) and Barbara Lee (D-Calif.).
The senators and representatives note in their letter that last month the HHS Advisory Committee on Blood and Tissue Safety and Availability issued a recommendation calling for dropping the current lifetime deferral of blood donations by MSM and replacing it with a one-year deferral, requiring MSM to be sexually abstinent for one year prior to donating blood.
“The recommendation to move to a one-year deferral policy is a step forward relative to current polices,” the letter says, “however, such a policy still prevents many low-risk individuals from donating blood. If we are serious about protecting and enhancing our nation’s blood supply, we must embrace science and reject outdated stereotypes,” the letter says.
“As such, we urge you to implement a risk-based blood donation policy for MSM, rather than simply another arbitrary time-based deferral,” the letter says.
An FDA spokesperson disputed assertions by some LGBT activists and FDA critics that the FDA’s claim that it continues to deliberate over whether to change the policy but has no timetable for reaching a decision in effect is a disguised way of saying no to a change without doing so directly.
“[I]t is misguided for anyone to assume that the FDA has made a decision when we repeatedly have said we have not,” said spokesperson Stephanie Yao.
Ryan James Yezak, founder and director of National Gay Blood Drive, which arranges for friends and family members of gay men to donate blood in place of gay donors who are barred from doing so, said he was troubled that some members of the FDA’s Blood Products Advisory Committee misunderstood the intention of LGBT advocates who are calling for the blood ban to be lifted.
“During the open public hearing, the many comments advocating on behalf of LGBT rights were misconstrued by some committee members as civil rights activists that lacked consideration for blood recipients,” Yezak said.
“This is simply not true,” he said. “Our effort is to eliminate discrimination based on sexual orientation from the deferral process and to help save lives. We can accomplish both at the same time while improving the quality and safety of our nation’s blood supply,” he said. “It isn’t one or the other; the two go hand in hand.”
In a related development, the United States Attorney’s Office for the Eastern District of Virginia, which is an arm of the U.S. Department of Justice, filed a response to a lawsuit filed by 19-year-old gay activist Caleb Laieski seeking to overturn the policy barring MSM from donating blood.
Laieski’s lawsuit, which he wrote and filed himself without representation from a lawyer, charges that the FDA’s ban on gay blood donors violates the constitutional rights of a person in need of blood who might be denied blood because of the ban. His suit also charges that the ban violates Title VI of the U.S. Civil Rights Act of 1964, which prohibits discrimination in federally funded programs.
In its response, filed Dec. 8 in U.S. District Court in Alexandria, Va., Assistant U.S. Attorney David Moskowitz argues in a motion that Laieski’s lawsuit should be dismissed on several grounds, including the ground that the FDA is currently reviewing the gay blood ban with the possibility of lifting it or changing it.
Moskowitz argues that previous court rulings have held that plaintiffs such as Laieski should pursue administrative remedies, such as continuing his current efforts to lobby the FDA to change the policy, rather than asking a court to make such changes.
The government response prepared by Moskowitz also calls for the lawsuit to be dismissed on several technical and legal grounds, including what he says is Laieski’s failure to state a legal claim for a violation of Title VI and failure to establish legal standing based on alleged injuries to himself or others due to the existing blood donor ban for gay men. Among other things, Moskowitz argues that no one has been denied blood because gay or bisexual men are not allowed to donate blood.
Laieski has 21 days to file his own motion opposing the government’s motion to dismiss the case or have it deferred until after the FDA completes its deliberations on whether the gay blood ban should be changed.