Both Eugene Volokh and Considerettes had something to say recently about Wednesday’s story in the Las Vegas Sun reporting that two student legislators at Western Oregon University have launched an effort to ban the Red Cross from conducting blood drives on campus, claiming that the donor screening process discriminates against gays. To wit, the Red Cross bars any man who has had sex with another man since 1977, even once, from donating blood; its contention is that this helps protect the nation’s blood supply from HIV-tainted blood.

While I agree with one conclusion of both Volokh and the author of Considerettes that this has the potential of throwing the baby out with the bathwater, and I personally wouldn’t support a ban on blood drives (Volokh invokes the words “mighty foolish” and “folly”), I think that both bloggers have missed an opportunity to look at the full story and the history behind the Red Cross’s stance and the FDA regulations, since medical research and the blood supply advisory community tend to believe that there is no scientific basis for the categorical ban, and to see whether there might actually be some anti-gay discrimination or at least some logical inconsistencies in the Red Cross’s policies that go beyond their stated public health rationale for rejecting blood from any man who has had a single episode of sex with another male.

• If you are a woman who has had sex, no matter how many times, with a man who has had sex with another man, you are asked to refrain from giving blood only for a year after your last sexual experience with that man.
• Similarly, if you are a man who has had sex, no matter how many times, with prostitutes, as long as you’ve never had sex with another man you also are asked to refrain from giving blood only for a year after your last sexual experience with a prostitute.
• If you are a woman who has been raped, even if you have no idea of the sexual history of the man who raped you, you may begin to donate blood again one year after the rape.
• However, if you are a male who has had sex with another man, even once, since 1977, you are prohibited from giving blood. Even if you have been celibate, in a monogamous relationship or have engaged only in heterosexual activity since, and test negative for HIV, you still may not donate blood.

According to the CDC, racial and ethnic minority populations in the United States, primarily African-Americans and Hispanics, make up more than 60 percent of the HIV infections in the U.S. Yet the FDC and the Red Cross do not ban African-Americans, Hispanics, or those who are engaged in heterosexual sexual relationships with African-Americans or Hispanics from donating blood.

Among new HIV infections in the U.S., sixty percent of men were infected through homosexual sex. However, seventy-five percent of women were infected through heterosexual sex, yet we do not categorically ban heterosexual women from donating blood.

The ban as written seems to have a double-standard. The same risky acts performed by heterosexuals generally merit only a twelve-month waiting period to donate blood, while for gay men status alone, regardless of sexual history for the past 27 years, suffices for a categorical ban.

Finally, the Red Cross hides behind the FDA, claiming that it is the FDA’s regulations that require the ban. However, they do not disclose that the Red Cross, as a member of the FDA Blood Products Advisory Committee, has been the lone voice preventing any change to the FDA’s regulations, while FDA staff and its other advisory organizations have suggested that the categorical ban is unjustified and unwise in the face of the ongoing blood shortages the country has continued to encounter over recent years.

In testimony at a watershed meeting of the FDA Blood Products Advisory Committee in September 2000, where the FDA was reviewing possible modifications to the gay ban, the American Association of Blood Banks (AABB) strongly advocated changes, and America’s Blood Centers (ABC), which collects nearly half of all the nation’s blood supply, also supported modifications. The American Red Cross (ARC) stood alone in opposing any change. Roehr reviews reports that the Red Cross opposes changes for financial reasons, and seeks to market itself as the “safest” source of blood through a policy which is not scientifically justified. BPAC support for changing FDA policy failed at that meeting by only one vote.

A recounting of events over the last few years clearly indicates that opposition to changing the policy on blood donation by gay men does not come from the FDA staff, the association representing professionals in the field, or the association representing agencies that collect about half of the blood in the United States. Opposition to changing the policy comes primarily, one is tempted to say solely, from the American Red Cross, which wields a de facto veto over the process.

The power of the Red Cross comes from the fact that it is a centralized behemoth that carries out a multitude of activities with an annual budget of about three billion dollars. It has a massive public relations machine that maintains its iconic image before the American public. The other organizations may represent equal or greater interests in the field of blood donation and use, but their resources are diffused and they are no match for the ARC.

What motivates the American Red Cross to maintain its opposition to changing the policy? Their rhetoric focuses on maintaining minimal risk within the blood supply, but that is at odds with the policy of the AABB to which many of their professional members belong.

Some past board members and lower level officials resigned from the Red Cross in past years, charging that the ARC was homophobic. ARC spokesmen have denied the charge, but the legacy of suspicion remains.

It seems likely that money, marketing, and sheer arrogance are factors contributing to ARC’s maintenance of the policy….

Regardless the course taken, it seems likely that internal and external pressure will have to be brought to bear on the American Red Cross for it to abandon its lone opposition to changing the policy. Even if the FDA decides to modify the policy, the ARC can always undercut it by maintaining its own, stricter policy. The most effective public argument in moving the ARC is likely to be one of identifying their position as one adopted for strictly for financial reasons, to save processing costs, while discriminating against a segment of American society when there is no valid scientific reason to do so.