Gay men blood donation ban

  • Posted by a hidden member.
    Log in to view his profile

    Sep 24, 2014 5:26 PM GMT
    I think it's stupid that we can't donate blood.
  • Posted by a hidden member.
    Log in to view his profile

    Sep 25, 2014 6:48 PM GMT
    Agreed.
  • Posted by a hidden member.
    Log in to view his profile

    Sep 25, 2014 6:56 PM GMT
    Not that I would if I could...

    Is donated blood given away for free?
  • Posted by a hidden member.
    Log in to view his profile

    Sep 25, 2014 8:56 PM GMT
    I would always donate blood but ever since I gave a guy a bj I stopped icon_sad.gif
  • janu88

    Posts: 346

    Sep 25, 2014 10:27 PM GMT
    You can donate blood even when your gay icon_lol.gif

    or do they "test" your gayness before ? icon_cool.gif
  • Posted by a hidden member.
    Log in to view his profile

    Sep 25, 2014 10:50 PM GMT
    From what I understand all donations are tested for HIV so why not?
  • Posted by a hidden member.
    Log in to view his profile

    Sep 25, 2014 10:51 PM GMT
    pazzy saidwell, here's an interesting question.


    why hasn't the hrc or any of these gay rights organizations try to challenge that shit in court or setting something up using gay male virgins? i'm serious... you know, like some discrimination shit where folks are being denied the right to give blood simply because of their sexual orientation.

    when you think about it, that shit is really stupid though? a straight person could give blood but a gay person can't? all because of what hiv? do they realize that hiv isn't a gay disease? let me guess, the religious folks run the blood banks?


    Because there's no such thing as a "right" to give blood.
  • Posted by a hidden member.
    Log in to view his profile

    Sep 25, 2014 10:52 PM GMT
    bon_pan saidNot that I would if I could...

    Is donated blood given away for free?


    No, it costs money to take the donations from the donor, process, test, and store. Perhaps the government should give a tax break to regular donors.
  • Posted by a hidden member.
    Log in to view his profile

    Sep 25, 2014 10:57 PM GMT
    pazzy said
    sf_swimmer said
    pazzy saidwell, here's an interesting question.


    why hasn't the hrc or any of these gay rights organizations try to challenge that shit in court or setting something up using gay male virgins? i'm serious... you know, like some discrimination shit where folks are being denied the right to give blood simply because of their sexual orientation.

    when you think about it, that shit is really stupid though? a straight person could give blood but a gay person can't? all because of what hiv? do they realize that hiv isn't a gay disease? let me guess, the religious folks run the blood banks?


    Because there's no such thing as a "right" to give blood.


    http://www.fda.gov/biologicsbloodvaccines/bloodbloodproducts/questionsaboutblood/ucm108186.htm

    are you sure about that??????


    Yes. Where in the law does it say that someone or something has to accept someone's donation of blood? You've linked to an explanation provided for public-relations purposes.
  • Posted by a hidden member.
    Log in to view his profile

    Sep 25, 2014 11:17 PM GMT
    pazzy said
    sf_swimmer said
    pazzy said
    sf_swimmer said
    pazzy saidwell, here's an interesting question.


    why hasn't the hrc or any of these gay rights organizations try to challenge that shit in court or setting something up using gay male virgins? i'm serious... you know, like some discrimination shit where folks are being denied the right to give blood simply because of their sexual orientation.

    when you think about it, that shit is really stupid though? a straight person could give blood but a gay person can't? all because of what hiv? do they realize that hiv isn't a gay disease? let me guess, the religious folks run the blood banks?


    Because there's no such thing as a "right" to give blood.


    http://www.fda.gov/biologicsbloodvaccines/bloodbloodproducts/questionsaboutblood/ucm108186.htm

    are you sure about that??????


    Yes. Where in the law does it say that someone or something has to accept your blood?


    that's not the point. it's about the government discriminating someone based off of their sexual orientation. how is that any different than kids who openly identify as being gay being denied going to public schools because they're more likely to be the target of bullying. it's basically them using something that's going on with some guys and using it as an excuse to shut out an entire group. i don't see them denying straight people and obviously, there's some straight people that have hiv, stds and all sorts of diseases. it's discriminatory.


    Now you're going to make me go all lawyer on you ... Yes, it is discriminatory, but it's discrimination that has nothing to do with a right under the law. Kids have a right to an education because it is written into the law, so discrimination in that area is actionable (i.e., you can state a claim under law that a court would recognize). Similarly, most businesses cannot discriminate because there are statutes that prohibit them from doing so (e.g., California's Unruh Act); thus, an actionable right has been created by the legislature. As far as I know and understand the law, there is nothing comparable that says everyone has the right to donate blood.
  • Svnw688

    Posts: 3350

    Sep 25, 2014 11:30 PM GMT
    SFSwimmer is correct about the law:

    There is no common law or statutory law, so you'd be going under the Federal Constitution with a Section 1983 action against a "state" entity for denial of EQUAL PROTECTION CLAUSE of the 14th Amendment. Interesting, you CAN donate blood if you are LGBT self-identifying. You simply cannot donate blood if you ADMIT to being a MSM or a man who has had sex with a man (among other disqualifying criteria). Since you can argue this targets LGBT under a disparate impact theory, you could probably bring a LGBT claim at large. The government's classification because it targets an insular minority after the United States v. Windsor decision would require RATIONAL BASIS PLUS or INTERMEDIATE scrutiny as LGBTs are a "quasi suspect class." This means that there has to be a REAL reason, not just a proferred and conceivably rational reason, but banning LGBTs does not have to be the least restrictive means (i.e., strict scrutiny like race, ethnicity, etc.).

    Here, LGBTs currently constitute 50% of new HIV infections in the USA, despite being only 2.1% of the USA population. From a medical standpoint, it is well beyond rational to simply bar LGBT blood because it's only 2.1% of the potential supply, which is negligable to stock levels, but contains 50% of the incurable infection of HIV. So even if a court case were brought, the homophobes would win.

    Mind you, I don't agree with the ban, but it is RATIONAL.
  • Svnw688

    Posts: 3350

    Sep 25, 2014 11:48 PM GMT
    @Pazzy,

    I'm not 100% certain on the "self identifying" LGBT virgin vs. (gay or straight) MSM. But I remember looking at the questionaire once, and I said something like "have you ever had sex with a man" after it asked your gender.
  • Svnw688

    Posts: 3350

    Sep 25, 2014 11:53 PM GMT
    Just looked up a questionnaire, I think the "gay virgin" versus MSM (gay or straight) distinction stands, at least as a technical matter.

    "From 1977 to the Present....Male donors: had sexual contact with a male (even once)"

    So gay virgins, it seems technically can donate. And self-identifying straight guys who get a b/j from another man cannot. So it seems.
  • Posted by a hidden member.
    Log in to view his profile

    Sep 26, 2014 12:12 AM GMT
    Svnw688 saidSFSwimmer is correct about the law:

    There is no common law or statutory law, so you'd be going under the Federal Constitution with a Section 1983 action against a "state" entity for denial of EQUAL PROTECTION CLAUSE of the 14th Amendment. Interesting, you CAN donate blood if you are LGBT self-identifying. You simply cannot donate blood if you ADMIT to being a MSM or a man who has had sex with a man (among other disqualifying criteria). Since you can argue this targets LGBT under a disparate impact theory, you could probably bring a LGBT claim at large. The government's classification because it targets an insular minority after the United States v. Windsor decision would require RATIONAL BASIS PLUS or INTERMEDIATE scrutiny as LGBTs are a "quasi suspect class." This means that there has to be a REAL reason, not just a proferred and conceivably rational reason, but banning LGBTs does not have to be the least restrictive means (i.e., strict scrutiny like race, ethnicity, etc.).

    Here, LGBTs currently constitute 50% of new HIV infections in the USA, despite being only 2.1% of the USA population. From a medical standpoint, it is well beyond rational to simply bar LGBT blood because it's only 2.1% of the potential supply, which is negligable to stock levels, but contains 50% of the incurable infection of HIV. So even if a court case were brought, the homophobes would win.

    Mind you, I don't agree with the ban, but it is RATIONAL.


    Again, I may be wrong, but I don't think a section 1983 action would lie because there has to be a "deprivation of any rights, privileges, or immunities secured by the Constitution and laws," and there is no fundamental right to donate blood within the "substantive due process" theory of Articles 5 and 14 or under any statutory or common law.
  • Svnw688

    Posts: 3350

    Sep 26, 2014 12:47 AM GMT
    SFSwimmer

    I see what you're saying, if I were trying to find a claim I'd probably speculate this:

    Section 1983 Equal Protection claim could operate under the idea that ANYTIME the government acts, it cannot do so arbitrarily ("class of one" 1983 claims), and it cannot do so in a discriminatory fashion unless certain criteria is met. As such, IF there is state action (a huge question in and of itself), then I think the government is neither allowed to act arbitrarily or in a discriminatory fashion unless it complies with the strictures of rational-basis plus, intermediate, or strict scrutiny. I could be wrong on that, but I do think the fundamental "right" we'd be trying to grab in the Constitution is the right to be treated equally, which is found in the EP clause. Not sure though, I've only done a 1st Amendment retaliation claim. I've never litigated a 14th Amendment claim.

    To clarify, it's not exactly like marriage. Marriage is a fundamental right in the constitution. Here, the right is to simply have the government treat you equally. As such, the government would theoretically be free to shut down all blood donations, since there's no underlying right to give blood. BUT, once the government gets into the business of taking blood, it CANNOT do so in a discriminatory manner.
  • brickboy1966

    Posts: 359

    Sep 26, 2014 1:01 AM GMT
    Go to Youtube and look for Ryan James Yezak.
  • Posted by a hidden member.
    Log in to view his profile

    Sep 26, 2014 2:19 AM GMT
    Svnw688 saidSFSwimmer

    I see what you're saying, if I were trying to find a claim I'd probably speculate this:

    Section 1983 Equal Protection claim could operate under the idea that ANYTIME the government acts, it cannot do so arbitrarily ("class of one" 1983 claims), and it cannot do so in a discriminatory fashion unless certain criteria is met. As such, IF there is state action (a huge question in and of itself), then I think the government is neither allowed to act arbitrarily or in a discriminatory fashion unless it complies with the strictures of rational-basis plus, intermediate, or strict scrutiny. I could be wrong on that, but I do think the fundamental "right" we'd be trying to grab in the Constitution is the right to be treated equally, which is found in the EP clause. Not sure though, I've only done a 1st Amendment retaliation claim. I've never litigated a 14th Amendment claim.

    To clarify, it's not exactly like marriage. Marriage is a fundamental right in the constitution. Here, the right is to simply have the government treat you equally. As such, the government would theoretically be free to shut down all blood donations, since there's no underlying right to give blood. BUT, once the government gets into the business of taking blood, it CANNOT do so in a discriminatory manner.


    Interesting read, but I can't agree with what you've written. Practically everything the government does benefits someone at the expense of someone else ... everything is "unequal" to somebody in the end. Generally therefore only "due process" is required unless a separate legally protected right is involved, and donating blood isn't one of them. I don't think the government is "in the business of taking blood" but merely regulates those who provide that service.
  • Apparition

    Posts: 3529

    Sep 26, 2014 2:31 AM GMT
    Walk past a donation clinic guilt free...oh please do something to add work and pain to my life....not
  • Poome

    Posts: 1

    Sep 26, 2014 2:37 AM GMT
    I still donate blood even today. In vancouver, u can donate blood even u r gay, but must not have annual sex or oral with guys for 3 years before donate. I think some gays who like only jo have no problem.

    Anyway, I think this is kind of descrimination. I know annual sex increase chance of HIV, and gay habits can lead to a lot of diesease. However, this is not a good way to deal with a lack blood in the bank.
  • Svnw688

    Posts: 3350

    Sep 26, 2014 3:16 AM GMT
    SfSwimmer....

    I think I hear what you're saying. I would only reply by stating that I agree the "due process" (both procedural and substantive) clause is NOT implicated because there is no underlying fundamental right.

    However, I would suggest that WHEN the government decides to engage in an activity (such as collecting blood), the government is FORBIDDEN from discriminating against insular minorities--in this case the "quasi suspect class" of LGBT individuals. Discrimination IS permissible constitutionally for race if strict scrutiny is complied with, and with intermediate scrutiny if the government interest is substantial. LGBT's have a weird "rational basis plus" scrutiny now thanks to Kennedy's muddled opinion in the Windsor case, and I think that requires more than the articulation of a conceivable rational basis, but requires that articulation to make sense. As such, I think that since the government affirmatively got into the "business" of taking blood, they may not do so in a discriminatory manner.

    One example I can think of is race. What if Louisiana decided to take blood donations, but flat out said "blacks cannot donate" because they, statistically, have slightly more likely to carry syphillus, HIV, and HPV, which is a medically accurate fact. Now, clearly this would implicate the 14th Amendment's EP clause and Louisiana's policy could only survive if the government put forth a "compelling" interest and the exclusion of all blacks was the "least restrictive means" to achieve that end. I don't know how the court would decide, but I offer this example only to show that once a government gets "into the business" of doing something, even where an underlying fundamental right does NOT exist, it may NOT do so in violation of the EP clause.

    I could be off base, but that's my thinking. Thoughts?
  • Posted by a hidden member.
    Log in to view his profile

    Sep 26, 2014 3:39 AM GMT
    Svnw688 saidSfSwimmer....

    I think I hear what you're saying. I would only reply by stating that I agree the "due process" (both procedural and substantive) clause is NOT implicated because there is no underlying fundamental right.

    However, I would suggest that WHEN the government decides to engage in an activity (such as collecting blood), the government is FORBIDDEN from discriminating against insular minorities--in this case the "quasi suspect class" of LGBT individuals. Discrimination IS permissible constitutionally for race if strict scrutiny is complied with, and with intermediate scrutiny if the government interest is substantial. LGBT's have a weird "rational basis plus" scrutiny now thanks to Kennedy's muddled opinion in the Windsor case, and I think that requires more than the articulation of a conceivable rational basis, but requires that articulation to make sense. As such, I think that since the government affirmatively got into the "business" of taking blood, they may not do so in a discriminatory manner.

    One example I can think of is race. What if Louisiana decided to take blood donations, but flat out said "blacks cannot donate" because they, statistically, have slightly more likely to carry syphillus, HIV, and HPV, which is a medically accurate fact. Now, clearly this would implicate the 14th Amendment's EP clause and Louisiana's policy could only survive if the government put forth a "compelling" interest and the exclusion of all blacks was the "least restrictive means" to achieve that end. I don't know how the court would decide, but I offer this example only to show that once a government gets "into the business" of doing something, even where an underlying fundamental right does NOT exist, it may NOT do so in violation of the EP clause.

    I could be off base, but that's my thinking. Thoughts?


    But in your example what right is not be given equal protection? While there may be some stigmatizing effect, I think it would be very difficult to sue in the absence of legislation prohibiting discrimination on the basis of sexual orientation in the context of blood donations. By way of example, that's why the Civil Rights Acts of the 1960s were so important for ending Jim Crow in the South: A black person who was required to sit at the back of a bus had no legal basis to sue for the stigmatizing effect of such a requirement until Congress stepped in and stated that state laws sorting people on the basis of race, but not affecting any substantive right, were a violation of explicit federal law.
  • Svnw688

    Posts: 3350

    Sep 26, 2014 3:48 AM GMT
    SfSwimmer....

    Very nice point of fact with the CRA. You're starting to persuade me. If I were to cling desperately to my argument I would say that federal law SHOULD have enforced the EP clause, but the federal courts in the south were SO radical and racist, that federal legislation was necessary. For example, even with Title VII today, it's illegal to have a "hostile work environment," but in the 2nd (NY, et al) Circuit that means things as trivial as creating a new job description and not providing staff, but today in the 10th (Okla, et al) Circuit you have to nearly come forward with physical assault or the use of the N, C or B word. The idea there is that while giving lip service to the legislation at issue (Title VII or EP Clause), Circuit Courts can applying the same law, facially, but require entirely different criteria to survive summary judgment or a directed verdict. Under my theory, the CRA was necessary to provide some more language and "umph" that, NO, public accommodations may not do XYZ, etc.

    There's an interesting question here. Can the government discriminate/differentiate vis-a-vis minorities when there is no underlying right (statutory, common law, or federal)? I hoenstly don't know the answer. I'd speculate the government cannot, but now we're back to our back-and-forth. I think I'll look into this tomorrow when I have some down time and am bored. I'll post on this thread, and email you what I find, if anything.
  • jlly_rnchr

    Posts: 1759

    Sep 26, 2014 4:03 AM GMT
    Svnw688 saidSFSwimmer is correct about the law:

    There is no common law or statutory law, so you'd be going under the Federal Constitution with a Section 1983 action against a "state" entity for denial of EQUAL PROTECTION CLAUSE of the 14th Amendment. Interesting, you CAN donate blood if you are LGBT self-identifying. You simply cannot donate blood if you ADMIT to being a MSM or a man who has had sex with a man (among other disqualifying criteria). Since you can argue this targets LGBT under a disparate impact theory, you could probably bring a LGBT claim at large. The government's classification because it targets an insular minority after the United States v. Windsor decision would require RATIONAL BASIS PLUS or INTERMEDIATE scrutiny as LGBTs are a "quasi suspect class." This means that there has to be a REAL reason, not just a proferred and conceivably rational reason, but banning LGBTs does not have to be the least restrictive means (i.e., strict scrutiny like race, ethnicity, etc.).

    Here, LGBTs currently constitute 50% of new HIV infections in the USA, despite being only 2.1% of the USA population. From a medical standpoint, it is well beyond rational to simply bar LGBT blood because it's only 2.1% of the potential supply, which is negligable to stock levels, but contains 50% of the incurable infection of HIV. So even if a court case were brought, the homophobes would win.

    Mind you, I don't agree with the ban, but it is RATIONAL.


    Best post I've seen on the topic. Of course, most of us don't agree with the ban, but it does make sense from a business stand-point.
    Small group of donors + highest risk of HIV = waste of money.

    The only thing that baffles me is, most blood banks do want the ban lifted. They are willing to risk the money on an increase in deferred donations, because the number of deferrals will be much lower than the number of safe units they can sell to hospitals. It's the government that won't lift it. It's surprising that they haven't just folded and acquiesced to business by now.
  • Posted by a hidden member.
    Log in to view his profile

    Sep 26, 2014 8:49 AM GMT
    Yeah, it's not a ban on gay men or people of a particular sexual orientation donating blood/blood products. It's men who have sex with men (MSM, which I don't think is a protected class in legal contexts), a category that many gay men and some straight-identifying men simply happen to fall under.

    The issue is that collecting blood from a group of people that has a higher rate of blood-borne infections (HIV/HBV/HCV etc) will obviously lead to having donated blood that has a higher rate of infections. And with that, there is higher rate of transmission of infections to blood recipients.

    This is true regardless of testing, because of the potential for false negatives; no test is fool proof. By allowing MSM to donate blood, there is an increase risk of exposure to blood recipients. If we allow a group of people to get through the first gate (letting them donate), they have easier access to get through the second gate (testing for drugs/infection).

    It's basically a somewhat rudimentary yet effective way of protecting blood recipients from being exposed. The questionnaire that donors fill out prior to donating are designed to assess the risk of infection of the donor's blood. It's based on science and statistics.

    However, I know a gay friend who's been in a monogamous relationship for 10 years who determined himself that he's low risk so he lies on the questionnaire in order to donate. I also know a gay person who banned blood drives at his undergrad campus due to the "discriminatory policy."

    I'm not sure how I feel about my friend who donates, but I don't think it's appropriate to ban blood donations altogether. Regardless of my thoughts about discrimination, donating blood is ultimately about the patients, not about the donors.

    Side note: I myself was a bone marrow match (I was a virgin when I put myself in the donor database). When I was matched, I went through the interview process and eventually they discovered I was MSM. Unfortunately bone marrow is a lot more difficult to match than blood, but hopefully they found another match for that patient. This is a case where, given the circumstances, I do think the MSM policy is outdated.
  • Posted by a hidden member.
    Log in to view his profile

    Sep 26, 2014 9:36 AM GMT
    Where lgbt is the 2-5% of the general population it has an infection rate 12-13%. This rate is higher than the general population. If you pull out other small un related slices of the general statistic; like black men wearing grey shirts, you could find a high rate of HIV infection in them too. Still we do not have a ban in place for these people? All these percentage numbers are very small and cant be that accurate.


    -AIDS the gay cancer, never really left the gay community, no cure, instead it just got managed and no one cares as much anymore anyways.
    -fewer gay men get themselves tested every 3-6mo even tho the testing is free.
    -especially the older lgbt population, a monogamous relationship is a theoretical goal.