BILL ANALYSIS �
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THIRD READING
Bill No: AJR 50
Author: Bloom (D), et al.
Amended: 8/21/14 in Assembly
Vote: 21
ASSEMBLY FLOOR : 58-15, 8/21/14 - See last page for vote
SUBJECT : Blood donation
SOURCE : Equality California
DIGEST : This resolution requests the President and the
Department of Health and Human Services (HHS) to adopt
science-based policies that repeal current Food and Drug
Administration (FDA) policies that prohibit men who have had sex
with men (MSM) from donating blood.
ANALYSIS : This resolution makes the following legislative
findings:
1.Declares that California law prohibits discrimination against
individuals on the basis of actual or perceived sex, sexual
orientation, gender identity, and gender-related appearance
and behavior.
2.Finds that current FDA policy effectively prohibits any man
who has had sex with another man even one time since 1977 from
donating blood for the rest of his life, and that the FDA
essentially classifies all sexually active gay and bisexual
men in the highest-risk blood donor category, the same
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category as Intravenous drug users and people who have spent
more than five years since 1980 in a country that has mad cow
disease.
3.Declares that the American Red Cross, the American Association
for Blood Banks, and America's Blood Centers, at a 2006
workshop convened by the FDA, issued a joint statement that
they believe the current blood donation policy of lifetime
deferral for MSM is medically and scientifically unwarranted,
and calling for deferral criteria to be made comparable with
criteria for other groups at increased risk for sexual
transmission of infections that can be transmitted through
blood transfusion.
4.Asserts that 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, and that to many, this
differentiation is unfair, creates stigma without any
justifiable public health imperative, and fosters negative
attitudes towards blood collection facilities and the
eligibility criteria they use to screen donors.
5.Finds that many men who have sex with men are healthy, present
no risk of introducing HIV or other infectious agents into the
nation's blood supply, and wish to be blood donors without
compromising the safety or reliability of the blood supply.
6.States that FDA guidelines followed by blood banks throughout
the country inadvertently create unjustified stigma directed
towards MSM, and that these guidelines conflict with state
nondiscrimination policies.
7.Calls upon the President to encourage, and the Secretary of
HHS to adopt, policies that repeal current donor suitability
and deferral policies of the FDA prohibiting blood donation by
MSM, and instead direct the FDA to develop science-based
policies.
This resolution requests the President and HHS to adopt
science-based policies that repeal current FDA policies that
prohibit MSM from donating blood.
Comments
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This resolution, sponsored by Equality California, respectfully
requests the President and HHS to adopt policies that repeal
current FDA policies that prohibit MSM from donating blood. The
author believes that the current FDA policy is unnecessary given
improvements in donor screening techniques, and operates in an
unfair and discriminatory manner against homosexual men as a
group because of their status, without regard to whether
screening of individual donors indicates any risk of
transmitting disease via blood transfusion. According to the
author, the FDA policy is "an outdated and discriminatory policy
that should be replaced scientific evidence-based practices for
collecting and testing donated blood."
According to the FDA, MSM at any time since 1977 are deferred as
blood donors because, as a group, MSM are at increased risk for
HIV, hepatitis B, and other infections that can be transmitted
by blood transfusion. The year 1977 was chosen because it
marked the beginning of the AIDS epidemic in the United States.
Although the FDA policy uses the term "deferral," the policy in
effect acts to prohibit, in all cases, MSM since 1977 from
donating blood.
The FDA has had a donor deferral policy for MSM since 1983, when
the risk of AIDS from transfusion was first recognized. On
April 23, 1992, the FDA issued a memorandum (also known as a
"guidance document") to all blood donation establishments titled
Revised Recommendations for the Prevention of Human
Immunodeficiency Virus Transmission by Blood and Blood Products.
As is common in administrative law, the agency issued this
memorandum to those in the regulated community to provide
guidance and more detailed instruction on how to comply with
federal law and regulations. T he specific rules in such a
memorandum can and often do have the effect of agency policy.
In this case, the current FDA policy deferring blood donation by
MSM traces back to that 1992 memorandum and has remained in
effect since that time.
According to the FDA Internet Web site, the primary
responsibility of the agency is to enhance blood safety and
protect blood recipients, and its MSM deferral policy is
intended to protect all people who receive blood transfusions
from an increased risk of exposure to blood potentially infected
with certain disease-causing agents, including HIV, the virus
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that causes AIDS. The FDA cites a variety of epidemiological
and scientific data to justify its current MSM deferral policy,
including that: (1) MSM since 1977 have an HIV prevalence 60
times higher than the general population and 800 times higher
than first time blood donors; (2) MSM account for the single
largest group of blood donors who are found HIV-positive by
blood donor testing; and (3) even the latest blood testing
technology cannot detect very low levels of HIV present in the
blood during the short "window period" right after infection but
before HIV tests can detect the virus. The FDA has stated it
would change its MSM deferral policy "only if supported by
scientific data showing that a change in policy would not
present a significant and preventable risk to blood recipients."
Under current FDA policy, potential blood donors judged to be at
risk for exposure via heterosexual routes are deferred for only
one year, while MSM with another man even once since 1977 are
permanently deferred. The author believes the FDA is not
justified in broadly differentiating sexual transmission via
male-to-male sexual activity from that via heterosexual
activity. As the measure states: "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." Furthermore, the author contends that not
only do current FDA guidelines conflict with state
nondiscrimination policies, but they also may "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." According to comments
made by Dr. Ronald Bayer of Columbia University at the FDA
workshop in 2006, this threat of stigmatization is something
that has concerned gay advocates ever since the FDA first
implemented its lifetime deferral policy for MSM in 1983.
In summary, supporters of the resolution believe that the FDA
deferral policy is outdated and should be changed to reflect
accepted science about the safety of blood donated by MSM as
compared to other donor sources. There is compelling evidence
to suggest that this is the case. The resolution also
acknowledges social and political reasons that support changing
the FDA policy. Proponents favor implementing a policy that
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takes into account the individual risk factors associated with
the sexual activity of a potential donor, regardless of his
sexual orientation, and believe such a policy would reflect the
spirit, if not the letter, of state anti-discrimination law,
while reflecting sound scientific principles. In addition, that
policy would presumably alleviate the fear of stigmatization,
long held by members of the gay community, associated with the
lifetime blood donation ban imposed on men who have sex with
other men.
FISCAL EFFECT : Fiscal Com.: No
SUPPORT : (Verified 8/29/14)
Equality California (source)
Human Rights Campaign
ASSEMBLY FLOOR : 58-15, 8/21/14
AYES: Achadjian, Alejo, Ammiano, Bloom, Bocanegra, Bonilla,
Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,
Chesbro, Cooley, Dababneh, Daly, Dickinson, Eggman, Fong,
Frazier, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gray, Hall,
Roger Hern�ndez, Holden, Jones-Sawyer, Levine, Lowenthal,
Maienschein, Medina, Mullin, Muratsuchi, Nazarian, Nestande,
Pan, Perea, John A. P�rez, V. Manuel P�rez, Quirk,
Quirk-Silva, Rendon, Ridley-Thomas, Rodriguez, Salas, Skinner,
Stone, Ting, Weber, Wieckowski, Wilk, Williams, Yamada, Atkins
NOES: Allen, Ch�vez, Dahle, Donnelly, Fox, Gorell, Grove,
Hagman, Harkey, Mansoor, Melendez, Olsen, Patterson, Wagner,
Waldron
NO VOTE RECORDED: Bigelow, Conway, Beth Gaines, Jones, Linder,
Logue, Vacancy
JL:k 8/29/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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