In December last year, the FDA lifted its longtime policy of deferring any blood or tissue donations coming from men who have had sex with other men at any time since 1977. The new policy defers only those men who have had sex with other men within one year of donation. This might seem like a positive change in U.S. blood and tissue donation policy. Any shift towards inclusion should be considered a step in the right direction, right? The history of the “gay blood ban,” its implications in sexual politics and the state, and the prevalence of HIV criminalization policy, however, render this potential shift meaningless at best and harmful at worst. A more radical HIV tissue and blood donation policy based on informed consent would not only dramatically increase the supply of U.S. blood and tissue banks, but also fight HIV stigma and dismantle the pathologization of gay sexuality, which such discriminatory HIV policy engenders.
The stigma against gay sexuality in current U.S. HIV policy, however, is not a novel means of marginalizing men who have sex with men. Policies like blood and tissue deferral and HIV criminalization have existed since the early 1980s, and their homophobic sentiments are rooted in an even longer history of pathologization and antagonism on the part of the state.
The Food and Drug Administration began deferring men who have sex with men (MSM) from blood and tissue donation as early as 1983, but this practice wasn’t codified into its current form until 1992. Between 1981, when AIDS was first identified, and 1996, when antiretroviral treatments were shown to be effective against HIV, discussion of reliable testing, effective treatment, or a cure seemed to be a pipedream; in the midst of thousands of deaths from AIDS, there was, as John Langone has written, “no treatment and no vaccine. Nor [would] there soon be.”1
During this time, many states passed laws that made the transmission of, or even the intent to transmit, HIV one of the most egregious sexual offenses, punishable in some states by sex offender registry, heavy fines, and significant prison time. The state of Iowa, for instance, punished HIV transmission with mandatory sex offender registry and twenty-five years in prison until last year, and similar laws are present in many other states’ criminal codes. HIV criminalization and MSM blood/tissue deferral might have seemed reasonable during the worst years of the epidemic, but I still would hesitate to say that the effect of these policies had anything to do with their stated goal of HIV prevention.
These laws, which are still in effect in many states, only reinforced the existing connection in American society between gay men and disease — homosexuality was removed from the Diagnostic and Statistical Manual only eight years before. In today’s political and social climate, they have the effect of making gay sexuality once again both criminal and pathological, while simultaneously intensifying stigma against people living with HIV. Especially in an age where effective treatments and prophylactics are available in the U.S, these stigmas and policies don’t do what they’re supposed to do, which is prevent HIV transmission. Instead, they perpetuate homophobia and create barriers for effective grassroots- and community-based HIV prevention strategies.
Moreover, new treatment and prophylactic technologies have made HIV virtually unrecognizable to the epidemic in the 1980s and early 1990s. In fact, Liz Highleyman of the BETA Blog reports that the recent “multinational PARTNER study found zero HIV transmissions from condomless sex within mixed-HIV-status couples” when the HIV positive partner had an undetectable viral load, and studies in the UK suggest that people living with HIV may have longer-than-average life expectancies with continuously effective antiretroviral therapy.
With this in mind, even if policies that criminalize HIV transmission and defer blood and tissue donations played some role in protecting public health during the epidemic, they increasingly have little to no relevance today. I do not mean to argue that HIV no longer has serious health implications for those who live with it. However, the relevance of discriminatory legislation designed to protect the public against a deadly disease becomes increasingly questionable as current medicine renders the disease less and less deadly. Instead, if our goal is to stop new infections, community-based prevention — especially treatment as prevention — rather than criminalization and homophobic tissue deferral needs to be central to any public HIV policy.
If, in light of new developments in HIV testing, prophylaxis, and treatment, the maintenance of blood and tissue donation policy that discriminates against MSM donors seems paradoxical, that’s because it is. Indeed, as Mark Joseph Stern recently noted in an op-ed for Slate, “straight people who enjoy frequent unprotected sex with a rotating cast of anonymous partners [have] no waiting period at all.” So long as a man has had sex with any man in the last twelve months, regardless of the HIV status of his partner(s), he is unable to donate blood or tissues. Given the way in which HIV criminalization laws are used to put gay men in prison, and the way in which blood bans are not applied to other potentially HIV positive demographics, these deferrals of blood donated by men who have sex with men are policies that have little do with protecting blood and tissue recipients, and are instead a state-supported diagnosis that gay sexuality is somehow pathological.
As an intern at the Lambda Legal Defense and Education Fund, I found that these problems in HIV policy were a frequent topic of discussion among the attorneys and legal interns working there. Over lunch, one of the attorneys suggested that HIV blood and tissue donation policy be radically restructured to allow people living with HIV to donate blood and tissue, even though recipients of their blood or tissue would almost certainly seroconvert (become HIV positive). Current medical and prophylactic technologies have not only reduced the risk of sexual and intravenous transmission of HIV to a degree unimaginable during the epidemic, but rendered the disease itself a chronic, manageable condition, as opposed to a death sentence.
Expanding blood and tissue banks to include not only the donations of HIV negative men who have sex with men, but also tissue and blood that carries the virus itself, would allow patients in need of hard-to-get organ transplants more donor options. Given the effectiveness of current antiretroviral treatment and the increased life expectancy of people living with HIV, in addition to the extremely low risk of transmission, someone on a miles-long waiting list for a liver or kidney might actually be willing to seroconvert if it means finding a matching organ. When conceived as a radical opening-up of medical treatment options, allowing HIV positive blood and tissues into donor banks is not only democratic and inclusive, but potentially life-saving.
Unfortunately, the political viability of such a policy is pretty small. Even some of my close friends still make faces of concern when I talk with them about my sex life, as if just the thought of gay sex is tantamount to contracting and spreading a deadly virus. That is to say, there is still a lot of work to be done on people’s attitudes about HIV before radical policy can be implemented. Nevertheless, I think that even suggesting this policy shift does some of that work. In making the case that some people might reasonably want to become HIV positive when it means getting an organ they need, the cultural fear and political antagonism towards gay sexuality and HIV inherent in criminalization laws, and this 12-month revision of the blood and tissue ban, reveal themselves to be grounded more in homophobia and discrimination than in sound medical science.
Brier, Jennifer. Infectious Ideas: U.S. Political Responses to the AIDS Crisis. Chapel Hill, NC: University of North Carolina Press, 2009.
Lambda Legal HIV Project. “HIV Stigma and Discrimination in the U.S.: An Evidence-Based Report.” Lambda Legal Defense and Education Fund. (November 2010): 19.
Martucci, Jessica. “Negotiating Exclusion: MSM, Identity, and Blood Policy in the Age of AIDS.” Social Studies of Science 40, no. 2 (April 2010): 215-241.
Moore, Patrick. Beyond Shame: Reclaiming the Abandoned History of Gay Sexuality. Boston: Beacon Press, 2004.
- John Langone, AIDS: The Facts (Boston: Little, Brown and Company, 1988), 150. Return to text.