The “Blood Donation” ban and “Asking”


The Food and Drug Administration (FDA) recently (in 2000) continued its policy of requiring blood banks to refuse blood donations from men who have had sex with other men even once since 1977, even from men who test negative for HIV and other STD’s by all commercially usable tests.  Presumably, this means that blood banks must “ask” male donors about past homosexual conduct.  This policy also applies to posthumous organ donations.[1]


The medical “wisdom” of this policy can be questioned. Presumably some heterosexuals who test negative but who behave “promiscuously” still present some risk by similar reasoning, that HIV might harbor itself undetected in a small number of persons for years without ever causing symptoms or sero-converting, or that persons with certain sexual behaviors might harbor as yet undiscovered new sexually transmitted diseases.


But is the policy at least an indirect invasion of privacy upon citizens by government (the FDA)? Let’s say at first that it might be possible to make the policy less onerous. Let gay men donate blood in corporate blood drives, but mark the blood only for autologous donation (to self or consenting immediate family members in future medical emergencies). Let the men mark themselves as donors and enjoy the same minor “benefits” (such as time off). 


As for the constitutionality of such a policy, most courts would probably hold that the public health concerns represent a “compelling state interest” that justifies a minimal invasion of privacy, assuming the self-declarations are not share outside of the blood bank. (And we are all familiar with the broader privacy problems regarding HIV contact tracing.) 


The argumentation will be of no small significance, however.  There could, at some point in the future, be calls that the military resume “asking” new recruits sexual orientation or about past homosexual behavior. (Theoretically, if the Steve May [go to] case comes to court, the military could be in a stronger position if it could claim it was basing discharges on unsuitability rather than conduct, a reversal of the “Don’t Ask Don’t Tell” philosophy—and recall that the Ninth Circuit in Meinhold had ruled that abstract statements under the “old policy” could not be construed as indicative of conduct,) This could be particularly disturbing if the government ever resumed conscription, because then it would have the legal warrant to learn the sexual orientation (and psychological intentions) of any military-aged male. The 3rd Circuit has already held that forced outing (in a case involving the police outing a teenager to a family) violates a right to privacy, so asking about psychological orientation (regardless of the “presumption” about conduct, just to show psychological unfitness for military service) might be unconstitutional (and the Meinhold 9th Circuit opinion on the Old Policy might suggest this).  Arguably, as long as the military maintains (as it has 1981, even before “Don’t Ask, Don’t Tell”) that a “statement” of homosexual orientation creates a “presumption” that homosexual acts really takes place, then asking about homosexual conduct could be construed as violation of the 5th Amendment right against self-incrimination (and this will get into discussions about the UCMJ and about civilian sodomy laws in many states, if the recruit has lived in one of those states).  A variation of this argument occurs if the military instead doesn’t ask about abstract sexual orientation but only about previous homosexual acts (because such a question would sound more conduct-based and less susceptible to equal-protection challenges).[2]  However, if one follows the blood bank example, a court could hold that “deference to the military” or “national security” and the unusual need for unit cohesion in the military outweighs these theoretical claims of privacy infringement, just as public health would in the blood example. 


It is appropriate to remember, however, that the 1993 Defense Authorization Act, while declaring a “sense of Congress” that the “asking” of sexual orientation of recruits upon entry in to the Armed Forces should not, at least for a time, take place, the Secretary of Defense (including a future Secretary) may resume “asking” at accession or in other administrative situations as he or she deems necessary to enforce the Enclosure on Homosexuality in the Armed Forces.  As long as “asking” is viewed as an administrative procedure, it is likely to be more constitutionally justifiable. Recall that this law with its administrative loopholes had been drawn up by Senators Sam Nunn, Dan Coates, Strom Thurmond and to some extent blessed by Gen. Colin Powell and others.  


Along the lines of constitutional questions, legislated attempts to keep military people out of gay bars or gay-owned businesses or out of (when in civilian clothes) gay parades would probably meet 1st Amendment challenges regarding expressive association, ironically (as argued in GLIL’s amicus brief) used by the conservative Supreme Court majority in upholding the Boy Scouts’ position in James Dale v. Boy Scouts of America (2000).   


Now I think that the determination of the United States government to drive gays (at least, for now,  “open” [??] gays and maybe again even closeted gays) from the military has a more deleterious effect upon gays as a whole (including gay civilians) than does the blood bank issue. (The military is a good start for many careers.)  But some of the underlying issues are similar. Today, gays want full civil equality from their government, and they want equal participation in the responsibilities of good citizenship (parenting, stable partnerships, availability for military service, community participation like blood donations) to “justify” this fulling equal status (as with the equality sign on the HRC trademark).  Indeed, equal treatment by government seems a prerequisite to intellectually honest attempts to guarantee equal treatment in the private areas, as with ENDA proposals.


In fact, we see government (the state courts) sometime prying into intimate matters in custody and adoption cases, supposedly for the welfare of the child.   There are going to be many people who say that none of this matters—the important thing is to be left alone to pursue a private life and that if democracy [with all the checks and balances] determines that gays should opt out of certain responsibilities and maybe have certain opportunities closed to them because of the supposedly problematic nature of gay values and behaviors, so be it.   This is hardly acceptable for me.  Democracy should not be a guise for letting the majority hide in comfort with itself.  Denial of anyone of some of their freedoms, even if unused, starts a slippery slope.


ÓCopyright 2000 by Bill Boushka

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Blogger update, Aug. 30, 2007


 Note: Artificial blood may be a coming thing.  Thomas M. Burton. “Amid Alarm Bells, A Blood Substitute Keeps Pumping: Ten in Trial Have Heart Attacks, But Data Aren’t Published; FDA Allows a Bew Study; Doctors’ Pleas Are Ignored.”  The Wall Street Journal, Feb. 22, 2006        

[1] In May 2005 the Food and Drug Administration planned to implement administrative rules banning anonymous sperm donations from any man who had had homosexual sex within the past five years—again “must ask, must tell.”

[2] On page 71 of Honor Bound (Random House, 1992, hardcover), Joseph Steffan reports that as a teenage high school applicant (in his junior year) to the Naval Academy, he was asked on the “security questionnaire” a question like “Are you a homosexual?”  I was asked about “homosexual tendencies” in my draft physical in 1964, but was not asked in 1966 or 1967. I cannot find a place in Shilts’s Conduct Unbecoming where the differentiation between conduct and status was noted in the asking process. Of course, we all know, as from the SLDN annual  “Conduct Unbecoming” reports that unofficial, illegal “asking” has often been done by commanders since 1993; but this has to do with how a policy is implemented, not with its legal structure or implications for others outside the military.