Amended in Senate August 9, 2016

Senate Joint Resolution No. 26

Introduced by Senator De León

(Coauthor: Senator Leno)

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(Coauthors: Assembly Members Bloom, Eduardo Garcia, Low, and Mayes)

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August 3, 2016

Senate Joint Resolution No. 26—Relative to blood donations.

LEGISLATIVE COUNSEL’S DIGEST

SJR 26, as amended, De León. Blood donations.

This measure would call upon the President of the United States to encourage the Secretary of the United States Department of Health and Human Services to adopt policies to repeal the current discriminatory donor suitability policies of the United States Food and Drug Administration (FDA) regarding blood donations by men who have had sex with another man and, instead, direct the FDA to develop science-based policies such as criteria based on risky behavior in lieu of sexual orientation.

Fiscal committee: no.

WHEREAS, Since 1983, the United States Food and Drug
Administration (FDA), an agency under the United States
Department of Health and Human Services (HHS), had prohibited
the donation of blood by any man who has had sex with another
man (MSM) at any time since 1977; and

WHEREAS, In December 2015, based on recommendations
from the HHS Advisory Committee on Blood and Tissue Safety
and Availability, the FDA promulgated revised regulations to allow
an MSM to donate blood only if he has not been sexually active
for the past 12 months. Despite these recent steps toward a policy
change, a double standard would still exist under the policy as it
is proposed to be revised because it would still treat gay and
bisexual men differently from heterosexual men; and

WHEREAS, California law prohibits discrimination against
individuals on the basis of actual or perceived sex, sexual
orientation, gender identity, and gender-related appearance and
behavior; and

WHEREAS, Argentina, Italy, Mexico, Poland, Portugal, Russia,
South Africa, South Korea, and Spain have adopted blood donor
policies that measure risk against a set of behaviors, sexual and
otherwise, rather than the sex of a person’s sexual partner or
partners; and

WHEREAS, The FDA begin insert currently end insert does not allow gay and bisexual
men in committed relationships to donate blood because, while
one partner may be monogamous, that individual cannot guarantee
that the other partner is monogamous. The FDA does not apply
this same logic to heterosexual relationships, which in effect
discriminates against gay and bisexual men; and

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WHEREAS, The FDA is in the process of again reevaluating
and considering updating its blood donor deferral policies as new
scientific information becomes available, including the feasibility
of moving from the existing time-based deferrals related to risk
behaviors to alternate deferral options, such as the use of
individual risk assessments; and

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WHEREAS, A 12-month deferral policy for gay and bisexual
men to donate blood is overly stringent given the scientific
evidence, advanced testing methods, and the safety and quality
control measures in place within the different FDA-qualified blood
donating centers; and

WHEREAS, The American Public Health Association has stated
that no specific scientific rationale is provided to justify the
12-month deferral policy. The technology can identify within 7 to
10 days with 99.9 percent accuracy whether or not a blood sample
is HIV-positive, and the chance of the blood test being inaccurate
within the 10-day window is about 1 in 2,000,000; and

WHEREAS, The General Social Survey conducted by NORC
at the University of Chicago estimates that 8.5 percent of men in
the United States have had at least one male sex partner since 18
years of age, 4.1 percent of men report at least one male sex partner
in the last 5 years, and 3.8 percent report a male sex partner in the
last 12 months; and

WHEREAS, An estimated 45.4 percent of men (54 million) in
the United States are eligible to donate blood, but only 8.7 percent
of eligible men actually do. There are 15.7 million donations of
blood per year made by 9.2 million donors, yielding approximately
1.7 donations per donor; and

WHEREAS, The Williams Institute of the University of
California at Los Angeles School of Law estimates that, based on
the population of eligible and likely donors among the MSM
community, lifting the federal lifetime deferral policy on blood
donation by an MSM would result in 4.2 million newly eligible
male donors, of which 360,600 would likely donate, generating
615,300 additional pints of blood. Applying national estimates to
the California population, the Institute further estimates that lifting
the ban on MSM blood donations would add an additional 510,000
eligible men to the current blood donor pool, of which 43,917
would likely donate, resulting in an additional 74,945 donated
pints in California; and

WHEREAS, One hundred fifteen members of the Congress of
the United States sent a letter to the FDA Commissioner, Dr.
Robert M. Califf, MD, urging him to finally put an end to this
outdated blood donation policy and update it to reflect science,
not fear; now, therefore, be it

Resolved by the Senate and the Assembly of the State of
California, jointly, That the California State Legislature calls upon
the President of the United States to encourage the Secretary of
the United States Department of Health and Human Services to
adopt policies to repeal the current discriminatory donor suitability
policies of the United States Food and Drug Administration (FDA)
regarding blood donations by men who have had sex with another
man and, instead, direct the FDA to develop science-based policies
such as criteria based on risky behavior in lieu of sexual
orientation; and be it further

Resolved, That the Secretary of the Senate transmit copies of
this resolution to the President and Vice President of the United
States, to the Secretary of the United States Department of Health
and Human Services, to the Speaker of the House of
Representatives, to the Majority Leader of the Senate, and to each
Senator and Representative from California in the Congress of the
United States.