Amended in Assembly August 20, 2014

California Legislature—2013–14 Regular Session

Assembly Joint Resolution No. 50

Introduced by Assembly Member Bloom

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(Coauthors: Assembly Members Ammiano, Eggman, and Ting)

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(Coauthor: Senator Leno)

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August 5, 2014

Assembly Joint Resolution No. 50—Relative to blood donation.

LEGISLATIVE COUNSEL’S DIGEST

AJR 50, as amended, Bloom. Blood donation.

This measure would request that the President of the United States encourage, and that the Secretary of the United States Department of Health and Human Services adopt, policies that repeal the current donor suitability policies of the federal Food and Drug Administration regarding the donation of blood by men who have had sex with another man.

Fiscal committee: no.

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, The current federal Food and Drug Administration
(FDA) donor deferral policy, first established in 1983 when the
FDA had no way of testing blood or plasma for HIV, effectively
prohibits blood donation by men who have had sex with another
man even one time since 1977. The FDA essentially classifies all
sexually active gay and bisexual men in the highest-risk blood
donor category, the same category as IV drug users and people
who have spent more than five years since 1980 in a country that
has mad cow disease. Even with a clean bill of health, a gay man
is considered more of a threat to the blood supply than a straight
man who was treated for chlamydia, syphilis, gonorrhea, venereal
warts, and genital herpes within the past year. In 40 states, a man
can even give blood immediately following a tattoo or 12 months
after having sex with a prostitute; and

WHEREAS, The American Red Cross (ARC) has joined the
American Association for Blood Banks (AABB) and America’s
Blood Centers (ABC) in asking for a reevaluation of current donor
donation deferral policies; and

WHEREAS, The American Medical Association (AMA) voted
on June 18, 2013, to oppose the decades long ban by the FDA
finding it is discriminatory and not based on sound science, and
recommends that each donor be evaluated on an individual basis
and not based on their sexual orientation alone; and

WHEREAS, In May 2013, the nonprofit Canadian Blood
Services, which manages that nation’s blood supply, announced
the repeal of the policy banning men who have had sex with
another man from donating blood and the replacement of that ban
with a deferral policy; and

WHEREAS, begin delete In February 2010, Sweden reduced its men who
have sex with another man deferral from a permanent ban to a
12-month deferral period, joining the nations of Argentina,
Australia, Brazil, Hungary, Japan, and the United Kingdom. end delete begin insert The
nations of Argentina, Australia, Brazil, Hungary, Japan, Sweden,
and the United Kingdom, among others, have adopted blood donor
policies providing a 12-month deferral period for men who have
had sex with another man. In addition, end insert France, Spain, Italy, Russia,
and Portugal 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 AABB, ABC, and ARC, on March 9, 2006,
at the Blood Products Advisory Committee of the FDA, at a
workshop titled “Behavior-Based Blood Donors Deferrals in the
Era of Nucleic Acid Testing (NAT),” issued a joint statement
affirming that they believe that the current lifetime deferral for
men who have had sex with other men is medically and
scientifically unwarranted and recommended that the deferral
criteria be modified and made comparable with criteria for other
groups at increased risk for sexual transmission of
transfusion-transmitted infections; and

WHEREAS, It does not appear rational to broadly differentiate
sexual transmission via responsible male-to-male sexual activity
from transmission via responsible heterosexual activity on scientific
grounds. To many, this differentiation is unfair, creates stigma
without any justifiable public health imperative, and results in
negative attitudes to blood donor eligibility criteria and blood
collection facilities; and

WHEREAS, Blood banks in the United States routinely operate
with a short blood supply. After significant disasters or national
emergencies, the AABB, ABC, and ARC have each reported
regions operating with less than two days supply of blood; and

WHEREAS, Many men who have sex with men are healthy, do
not present a risk of introducing a transfusion transmissible
infection such as HIV into the nation’s blood supply, and wish to
be donors without compromising the safety or reliability of the
supply. These men wish to join their neighbors in expression of a
common altruistic form of civic engagement; and

WHEREAS, On July 11, begin insert 2014, end insert a nationwide blood drive begin delete will
take place end delete begin insert was held end insert to bring attention to the current FDA deferral
policy and help save lives; and

WHEREAS, Students and administrators have begun protesting
the FDA policy, including one notable example from 2008 when
San Jose State University president Don Kassing banned blood
drives from the school’s campus, writing in a memo to the campus
community that the “FDA’s lifetime blood donor deferral affecting
gay men violates our nondiscrimination policy”; and

WHEREAS, The AABB, ABC, AMA, begin delete HIVMA, and ARC end delete begin insert ARC,
and the HIV Medicine Association (HIVMA) end insert acknowledge the
concern that a hasty relaxation of deferral criteria may add
uncertainty to protection of the blood supply unless reliable data
is available to avoid that result. The blood collectors are willing
to assist in collecting data regarding the actual impact of changes
in the deferral, in order to allow for informed decisionmaking, and
for the development of additional, appropriate interventions to
ameliorate the impact; and

WHEREAS, Technological advances such as individual NAT,
pathogen inactivation, or added means of screening hold promise
to substantially reduce the risk that transfusion transmissible
infections from all donors, including men who have had sex with
men, could be introduced into the blood supply, and federal
advisory committees have encouraged the FDA to develop these
technologies further. Within seven to 10 days, it can be said with
99.9% accuracy whether or not a blood sample is HIV-positive
and the chance of an HIV-positive blood sample testing negative
after the seven to 10-day window is about one in two million; and

WHEREAS, If the current men who have sex with another man
ban on donation were completely lifted, the Williams Institute
estimates that an additional 130,150 men would likely donate
219,200 additional pints of blood each year. That analysis also
suggests that lifting the ban could increase the total annual United
States blood supply by 0.6% to 1.4%, which may seem modest,
but would occur in an environment where blood supply shortages
are common; and

WHEREAS, In summary, the AABB, ABC, AMA, HIVMA,
and ARC believe that the deferral period for men who have had
sex with other men should be modified and that this consideration
should also be extended to donors of human cells, tissues, and
cellular and tissue-based products; and

WHEREAS, FDA guidelines followed by blood banks
throughout the United States inadvertently create unjustified stigma
directed towards gay, bisexual, transgender, and heterosexual males
on the basis that they have had sex with another male since 1977;
and

WHEREAS, The AABB, ABC, and ARC are required to follow
the FDA guidelines, which consequently are in conflict with state
nondiscrimination policies; now, therefore, be it

Resolved by the Assembly and the Senate of the State of
California, jointly, That the California State Legislature calls upon
the President of the United States to encourage, and the Secretary
of the United States Department of Health and Human Services
to adopt, policies that repeal the current donor suitability policies
of the FDA regarding blood donation by men who have had sex
with another man and, instead, direct the FDA to develop
science-based policies; and be it further

Resolved, That the Chief Clerk of the Assembly 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.