The absurd reason the FDA bans many transgender women from donating blood

Why doesn’t the Food and Drug Administration allow heterosexual transgender women to donate blood? Well, for one, it doesn’t acknowledge the existence of trans people, at least when it comes to blood donations.

The issue goes back to a longstanding blood ban, but it came up again in a recent story by BuzzFeed’s Dominic Holden, in which two trans women are suing one of the world’s largest blood companies, Florida-based CSL Plasma, for refusing to allow them to donate. But the company told Holden that its hands are tied by federal regulations, which can be interpreted to ban trans women from donating blood.

What’s the FDA’s justification for the regulations? “Our policy is to designate by sex at birth,” an FDA spokesperson told Holden. “That is all there is to it.” In other words, the FDA doesn’t recognize trans people, who identify with a gender different from the one assigned to them at birth. And that’s caused a lot of confusion for companies like CSL Plasma, which have reacted with blanket bans on trans women.

The FDA bans men who have sex with men from donating blood. And since the agency considers trans women to be men, they’re also banned if they have sex with men. Some companies interpret this to ban gay men and transgender women from donating for life, even if they’re not sexually active. (The ban doesn’t apply to trans men who have sex with men, since they’re considered heterosexual women by the FDA.)

But assuming trans women have sex with men is a fundamental misunderstanding of their sexuality. Just like anyone else, trans women can be straight, gay, bisexual, asexual, or have a sexual preference that’s outside societal gender norms. They don’t all have a preference for men.

The current FDA policy was established in the 1980s during the height of the HIV epidemic. Back then, there were a lot of fears and uncertainties about the transmission of HIV, with the disease originally believed by some to be related to sexual orientation. HIV blood tests were also much less effective, failing to detect the virus for months.

Today, the situation is very different. We know much more about how HIV is transmitted, and that it’s not related to sexual orientation but more to specific sexual acts. It’s better understood that same-sex relationships can be and often are monogamous. There are now nucleic acid tests that can detect the virus within weeks of exposure. Blood donations are regularly tested for HIV. And various studies suggest less restrictive standards on donations wouldn’t negatively impact blood supplies.

The federal government has been slow to adapt its policies to the changing science, even as medical groups like the Red Cross have called for reform. But in December, a panel that advises the US Department of Health and Human Services (and the FDA) proposed eliminating the lifetime ban and moving to a one-year ban instead.

LGBTQ advocates and medical groups say the new policy would fail to eliminate the fundamentally discriminatory nature of the ban and overlook the real risk factors for HIV-contaminated blood, such as promiscuous sexual behavior and anal sex. To better filter for HIV risk while opening up the pool of potential donors, advocates say the FDA should ask about sexual practices — not just whom someone is having sex with — and allow men and trans women engaging in safe sex with men to donate blood, regardless of the time since their last sexual encounter.

As a group of lawyers and bioethicists put it in the scientific journal JAMA, “Although symbolically appealing, this equally arbitrary deferral interval fails to address several of the deficiencies of the ‘screen and defer’ paradigm. Indeed, it is the behavioral screen of prospective blood donors and not the length of the deferral period that is in need of reform.”

But it’s unclear if the FDA will actually change its policies. Until it does, many trans women can’t donate blood — and, for them, that feels like outright discrimination.