Gay blood ban: questions and answers
Here are some answers to commonly asked questions about the Red Cross ban on sexually-active gay and bisexual men giving blood.
1. What is the current Red Cross blood donation policy?
The Red Cross asks all potential donors if they have had male-to-male sex or sexual activity with a male who might be bisexual within the last twelve months.
A positive answer to either question bars the potential donor from giving blood.
The effect is that sexually active gay and bisexual men cannot donate blood in Australia.
2. What is wrong with this policy?
The effective ban on gay and bisexual men giving blood is wrong for three reasons.
It robs the Australian public of a significant pool of potential blood donors at a time when blood supplies are critically low.
Major surveys show that about 5-10% of the Australian male population are gay or bisexual men. A 5-10% increase in blood donations at this critical time may save lives.
The ban unnecessarily discriminates against gay and bisexual men and stigmatises them as a threat to public health.
It poses a particular problem for gay and bisexual men who are not open about their sexual orientation in workplaces or service clubs where en mass blood donation is encouraged.
The ban also sends out an incorrect and irresponsible public health message by suggesting that all gay sex is a health risk while virtually all heterosexual sex is safe.
3. Doesn’t the ban on gay and bisexual men giving blood protect the blood supply?
No. Donated blood is tested for HIV and other blood-borne diseases.
There is a window period during which time the presence of HIV in donated blood cannot be detected, but due to rapid advances in technology this has been reduced to less than a fortnight and has no impact on the production of most blood products.
Blood products that must be used within a fortnight of donation (eg platelets for people with haemophilia) are only taken from donors with a well-established relationship with the Red Cross.
The existence of a window period may make it necessary for potential blood donors to disclose their relevant medical and sexual history.
However, we believe that male-to-male sex is not, in-and-of itself, relevant to HIV risk and should not be used as a basis for barring potential donors.
4. Isn’t it a fact that in Australia gay and bisexual men are more likely to have HIV?
Yes. But the overwhelming majority of men who have sex with men do not, and will never, have HIV or AIDS.
This is because of a wide spread culture of safe sex. If safe sex is promoted by public health authorities as sufficient to save the lives of gay men, it should be considered by the Red Cross as sufficient to protect the blood supply.
Heterosexual men and women who have unsafe sex are more likely to have HIV/AIDS than most gay men.
However, the Red Cross does not screen for them, or bar them from donation.
A reformed donor policy that screens for safety of sexual practice rather than gender of sexual partner would eliminate these inconsistencies and make the blood supply safer.
5. Are there other inconsistencies with the Red Cross blood donation policy?
Yes. Sexually-active gay and bisexual men can be organ donors and sperm donors.
African Australians and Aborigines are not automatically excluded from blood donation, even though the former group has much higher rates of HIV than the general population, and the latter, much higher rates of other STIs.
Such race-based exclusions would rightly be considered inappropriate and unnecessary.
6. Are there any countries which allow gay and bisexual men to donate blood?
Yes. Sexually-active gay and bisexual men are not banned from donating blood in either Italy or Spain.
This has not placed the blood supply in those countries at risk.
In fact, the transmission of HIV through blood transfusion has decreased since the blanket ban on gay blood donation was replaced with a policy which screens all blood donors for the safety of their sexual practices.
In July last year, the Prime Minister of Sweden, Goran Persson, said gay men should be able to donate blood.
In March this year the American Red Cross, together with the American Association of Blood Banks and America’s Blood Centers, wrote to the US Food and Drug Administration seeking a review of that country’s gay blood donation ban.
7. What legal action is being taken
Two cases have been lodged, one with the Tasmanian Anti-discrimination Commission and one with the Australian Human Rights and Equal Opportunity Commission.
The case to the Tasmanian Anti-discrimination Commission alleges that the Red Cross policy effectively banning gay and bisexual men from giving blood is discriminatory on the grounds of sexual orientation and lawful sexual activity.
It argues that the policy is not necessary to protect the blood supply from contamination. It also argues that the Red Cross is contravening its own principles as well as the guidelines set by the Council of Europe for blood donation, guidelines which Australian Federal legislation says apply to this country and which are overseen by a Federal Government agency called the Therapeutic Goods Administration.
The case to the Human Rights and Equal Opportunity Commission alleges that the Therapeutic Goods Administration has contravened Australia's international human rights obligations under the International Covenant on Civil and Political Rights, in particular the right to equality and the right not to be discriminated against on the grounds of sexual orientation.
It has done this by failing to ensure that the Red Cross conforms to its own principles and to the guidelines set by the Council of Europe for blood donation.
8. Why is this legal action so important?
At a national level the current litigation is important because it has the potential to overturn the gay blood donor ban.
This is because the ban is not mandated by law. It is simply an Australian Red Cross policy.
Up until a few years ago blood donation was illegal in some states. This is why a complaint against the gay blood ban taken in 1999 under the Victorian Equal Opportunity Act failed.
However, those laws have since been replaced by a national law based on the relevant Council of Europe Guidelines. These Guidelines do not explicitly prohibit blood donation by sexually-active gay and bisexual men.
At an international level the current litigation is important because never before anywhere in the world has a court has agreed to hear the cases for and against a blanket ban on gay blood donation.
The removal of this ban in Italy and Spain were acts of government not of the judiciary.
This is the first time the gay blood ban has been on trial.
9. Who is the person taking the complaints?
Michael Cain is a young gay man who lives in Launceston.
When he responded to a Red Cross call for blood donors in October 2004 he was not aware of the ban on sexually active gay and bisexual men giving blood.
He answered honestly to the male sex question on the donor form and was deeply upset that he was refused the opportunity to donate on the basis of that answer.
Michael was then in a monogamous same-sex relationship, and felt that the ban was both unnecessary, discriminatory and disrespectful.
Michael wrote to the Red Cross with his concerns, but there was no reply.
He then approached the Tasmanian Gay and Lesbian Rights Group for advice, and the Hobart Community Legal Service was engaged to prepare Michael’s cases and represent him.
Michael has the on-going support of the Tasmanian Gay and Lesbian Rights Group and the Hobart Community Legal Service.
10. What solutions do we want?
We want the Red Cross to stop banning sexually active gay and bisexual men from giving blood purely on the basis of their sexual activity.
We want the Red Cross to put in place a new policy which applies risk assessment equitably.
This means asking all potential blood donors on the basis of the safety of their sexual practices rather than the gender of their sexual partners.
We also want the Red Cross to conduct a community education campaign, once its ban is lifted, to alert all gay and bisexual men to the fact that, if they practise safe sex, their blood donations are welcomed.
11. What about other banned groups?
Intravenous drug users and sex workers are also banned from giving blood because of higher rates, or perceived risk of HIV.
Like gay and bisexual men, members of these groups are arguably more likely to be aware of the risks of HIV and take measures to protect their health.
Like gay and bisexual men they should not be banned as a group from giving blood but should be assessed individually on the basis of their medical and/or sexual history.
12. Is public opinion behind a change in policy?
When the ban was put in place 20 years ago much less was known about what causes AIDS, how it was transmitted and detected.
At that stage many people, including many gay and bisexual men, thought the ban necessary.
A generation on we know that AIDS is not a gay disease and that health risks arise not from male-to-male sex but from unsafe sex.
We believe that Australia has moved on from the panic of the mid-1980s and that many Australians now feel that more appropriate and rational blood screening policies are needed.