When it comes to donating blood, you might be aware that gay men aren’t allowed to do it if they’ve had sex in the past year. (Technically, the ban applies to men who have had sex with men (MSM), which is slightly broader than just gay people.)
The one-year “deferral” is actually a recent change; in the past, sexually active gay men couldn’t donate at all. A version of that FDA regulation has been in place for decades as a result of the AIDS crisis in the 1980s — even though technology has now evolved to let us screen blood for HIV much more quickly and effectively.
So why hasn’t the U.S. taken a hint from other countries that have either shortened that deferral period (like Japan and the UK) or eliminated it completely (like Italy and Spain)? Excuses range from imperfect screening tests to opposition from the Religious Right.
It’s silly, in some ways, because a straight man who sleeps with many women is much more of a health risk that a gay man who’s monogamous. Yet only the gay man is prevented from donating blood.
But we live in a country where same-sex couples can now get married and where LGBTQ equality is on much firmer footing than it used to be (even despite current setbacks). So why not sue the government on grounds that the FDA’s restrictions discriminate against gay people?
The simple answer is that such a lawsuit probably wouldn’t get anywhere.
The FDA’s ban isn’t in place because the government is actively discriminating against gay people; it’s a safety issue, they’ll say. If we could test the blood for HIV in an instant, we’d let everyone donate. But since we can’t, we’re screening out the people with the greatest likelihood of having it.
Maybe there’s another way of winning the legal battle, though.
In an absolutely fascinating paper set to be published in the William & Mary Law Review, and currently available online, Professor Brian Soucek of the UC Davis School of Law considers an alternative approach to overturning the ban.
Even if it didn’t work, he writes, the end result could still weaken the “religious freedom” laws that Christian Right groups have been using to great effect. As he says, “the case is a coin toss: heads, gay rights advocates win; tails, religious conservatives lose.”
Soucek’s theory is that the ban could be defeated if only we had a sexually active gay donor who insisted that giving blood was an act of faith. (After all, Christ gave blood for us, so we ought to do the same!)
By not being allowed to donate blood, he could say the government is violating the Religious Freedom Restoration Act (RFRA), which basically says the government can’t force you to violate your religious beliefs unless there’s a really good reason for it.
In the case of this donor, the law seriously burdens his faith. Either he can’t give blood (which his church might call an important act of charity) or he has to abstain from having sex for a year (which is no small thing). How could the government be okay with that when it could easily change the blood donation rules to shorten the deferral period, judge people by their risk factors instead of blanket-banning gay men, or just require another round of blood testing?
Any of these methods would seem to allow plaintiff to contribute to the blood supply — and thus, to public health — without increasing the risk of transmitting HIV. Given the less restrictive means it has at hand for ensuring the safety of the blood supply, the FDA would be compelled to provide plaintiff an exemption from its one-year MSM deferral.
That’s what would happen if the lawsuit succeeded. But what if it didn’t work?
Soucek says there would still be other kinds of victories for progressives in the sense that our current interpretation of “religious freedom” laws — which allow right-wing groups to get away with blatant acts of discrimination — would be severely weakened. By having to come up with a reason the ban must remain in place, judges would be changing the interpretation of RFRA as we know it.
Just to give one example — and Soucek has several — a judge might say the MSM blood ban isn’t a “substantial burden” on someone’s faith because “donating blood is a marginal religious practice.” In other words, if charity is what matters, the person could just volunteer at a soup kitchen instead.
But that would mean the court is deciding what actions are central to your faith, not you. Remember that the Supreme Court said something very different about the owners of Hobby Lobby when they didn’t want to include contraception coverage in their employees’ insurance plans because it violated their religious beliefs. I might say that’s ridiculous, but the Supreme Court said it was a sincere belief that deserved respect.
The crucial point here is that the religious gay blood donor can only lose on the substantial burden prong of his RFRA challenge if a court were to independently judge his blood donations as somehow unimportant. But to do this, they would have to turn back from the deference to plaintiffs that makes cases like Hobby Lobby such a potential threat to the rule of law.
So even a loss could upend “religious freedom” law as we know it.
After all that analysis, Soucek asks why we haven’t seen a plaintiff like this. Why aren’t gay rights groups working to file such a lawsuit, using these arguments? Why aren’t they out looking for that perfect plaintiff?
He says it’s possible they just haven’t considered this argument. It’s also possible that if they were victorious, and the ban was dropped, and a donation of blood turned out to be tainted, the backlash against the gay community would be swift and severe — so the risks of this lawsuit outweigh the benefits.
Soucek also suggests that this particular method for advancing equal rights may not sit well with everyone:
Trying to advance the rights of gay men — already traditional targets of disgust — in the context of something as disgust-inducing as blood might therefore be self-defeating. In a context like that, even liberals might be less sympathetic to gay rights claims.
In any case, as someone who is aware of the ban, wondered why it was still in effect, and never considered how it could be overturned, this paper offers a great overview of the situation along with a really interesting (and plausible) thought experiment.
Seriously, if you have some time, read this article.
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