The Red Cross gay blood ban: a summary of evidence presented so far
This summary of written evidence presented to the Anti-Discrimination Commission in the case of Michael Cain v the Australian Red Cross Blood Service was released by the TGLRG on July 3rd, 2006.
INTRODUCTION
In response to Michael Cain’s original complaint of discrimination, the Anti-Discrimination Commission gave the Australian Red Cross Blood Service an opportunity to defend its current policy. The Commission then gave Mr Cain’s representatives an opportunity to respond to this defence.
What follows is a summary of these written submissions. They provide the best indication available of what arguments for and against the current policy will be put to the Anti-Discrimination Tribunal.
First is the legal case. It is followed by the medical case.
THE LEGAL CASE
The Australian Red Cross Blood Service listed a range of legal reasons why Michael Cain’s complaint should be dismissed.
These included,
1. the ARCBS does not provide a service to potential donors so no legitimate claim can be made that there was discrimination in the provision of a service.
2. there was no direct discrimination because there is no detriment or stigma associated with being deferred from blood donation
3. there was no indirect discrimination because the different treatment the complainant experienced was reasonable given the need to protect the safety of the blood supply (see the Medical case below for more information on this).
4. the ARCBS has a statutory obligation to protect the safety of the blood supply.
Representatives of Michael Cain responded to each point as follows.
1. according to Australian case law, discrimination in the provision of a service includes discrimination in activities connected with the provision of that service. Moreover the ARCBS promotes blood donation by explicitly stating that donation provides a range of advantages to individuals and organisations.
2. the ARCBS policy fosters societal condemnation of men who have sex with other men as abnormal, immoral, deviant and diseased, as shown by the vitriolic letters to Tasmania’s newspapers from members of the public defending the current gay blood ban.
3. the current blanket ban is not a necessary to protect the blood supply, and if reformed may actually improve its safety (see the Medical case below for more information on this).
4. there are no Australian statutes which require the ARCBS to exclude all sexually-active gay and bisexual men from blood donation in order to protect the blood supply from disease.
By allowing Michael Cain’s to proceed to the Tribunal the Tasmanian Anti-Discrimination Commissioner has clearly dismissed the ARCBS’s legal objections.
Far more important to the Tribunal will be the medical case outlined below.
THE MEDICAL CASE
~ Male to male sex
In defence of its current 12 month deferral of blood donations from sexually-active gay and bisexual men, the ARCBS cites over 60 studies to arrive at the astounding conclusion that "male-to-male sex is in itself a high risk activity" (our emphasis).
Along the way it labels homosexuality a "chosen lifestyle"(1), describes men who have sex with men as "possessing" "high-risk characteristics"(2), makes extreme claims such as "a high proportion of men who have sex with men report high levels of sex with casual partners"(3), "many men who have sex with men do not practice safe sex"(4), "male-to-male sex is never completely ‘safe’"(5), and generally creates the impression that men who have sex with men are sexually irresponsible and a threat to public health.
In response, Michael Cain’s representatives carefully examined all of the studies cited and found them either to be misquoted and misconstrued, to contradict or refute the ARCBS’s claims and/or current policy, or to be irrelevant.
For example, the ARCBS claims that, "a high proportion of men who have sex with men report high levels of sex with casual partners. Many report unprotected sex with casual partners"(6).
However, the ARCBS fails to note that the surveys it cites to back up these statements have samples which are drawn from "bars, street locations, dance clubs…gyms, sex establishments and parks"(7), or STI clinics(8), and which are therefore not representative of all men who have sex with men, were specifically designed to examine risk-taking behaviour(9), or were not specifically about the relevant sexual activities and were based on tiny, unrepresentative samples(10).
Another example is the ARCBS claims that "as a group, men who engage in male-to-male sex have a high infection rate for Syphilis and other STDs" on the basis that infection rates amongst such men increased 27 times in Sydney between 1999 and 2003.
What the ARCBS does not say is that this increase was from a base of 6 to 162, that half of those infected already had HIV and would therefore be barred from blood donation, and that associated risk factors such as "seeking partners in darkrooms, cruising areas and saunas", and the use of drugs like GHB, are limited to a tiny minority of gay and bisexual men.
The ARCBS also fails to note that the studies it cites show "substantially higher rates of diagnosis of chlamydia, gonorrhoea and syphilis were recorded among Indigenous people compared with non-Indigenous people", and that these rates are, in some instances increasing alarmingly.
Nowhere has the ARCBS claimed that Indigenous people be deferred from blood donation because such statistics indicate an intrinsic vulnerability to disease. It knows that such a baseless and demeaning generalisation about Indigenous people would justifiably spark an outcry.
More importantly, the evidence presented by the ARCBS is made irrelevant by Michael Cain’s proposal for a reformed blood donation policy which bases the deferral of donation on safety of sexual practice rather than gender of sexual partner.
The proposed policy reform would mean that only those individual gay and bisexual men who are free of these diseases and not at risk of contracting them would be able to donate blood.
The questionable evidence the ARCBS puts forward about rates of HIV and unsafe sex amongst men who have sex with men have no bearing on the capacity of these individuals to donate.
This is probably why the ARCBS resorts the extreme and unsubstantiated claim that there is no such thing as male-to-male safe sex and that all such sex is intrinsically risky, conclusions which are contradicted by every reputable public health body and which compromise the credibility of the ARCBS.
~ International best practice
In defence of its current gay blood donation policy, the ARCBS also relies heavily on theoretical models which it asserts show it has adopted "world’s best blood banking practices".
The two studies it relies on are by Soldan and Sinka(11) in the UK and Germain et al(12) in North America. These studies conclude that removing the blanket ban on gay blood donation will significantly increase the risk of HIV transmission through blood transfusion (by 500% according to Soldan and Sinka).
However, representatives of Michael Cain have shown that these studies are flawed and irrelevant.
Both studies predict a significant increase in infection through transfusion the current UK and US lifetime bans are dropped in favour of a one year ban.
However, no such increase has occurred in those countries like Australia which have a one year bans, bringing into question the studies’ other dire predictions.
Just as seriously, neither study takes into account the replacement of a blanket gay blood ban with a ban on potential donors who engage in unsafe sex. This also reduces their predictive value.
It’s probably no surprise that the authors of both studies significantly qualify their findings.
According to Soldan and Sinka,
"Many assumptions were required to generate estimates of the risk of HIV infection entering the blood supply. The accuracy of the estimates is therefore uncertain and the probable ranges around the estimates were wide."(13)
It’s also no surprise that a statement issued in March this year by the American Red Cross, together with the American Association of Blood Banks and America’s Blood Centers calling for a review of that country’s gay blood donation ban, noted that the above studies’ results "were modelled using what may be incomplete assumptions".
Michael Cain’s representatives believe that of far more value than flawed theoretical models, is the actual experience of those nations which have adopted the policies they advocate.
Two such nations are Italy and Spain.
The Italian ban on gay blood donation was repealed by a decree of the Ministry of Health on the 26th January 2001(14). The amended provision differentiates between potential donors based on risk activity rather than categories of people amongst whom it is assumed HIV/AIDS prevails at a higher than average rate.
For example, people who have had "sexual intercourse with a high risk of transmission of infectious diseases" are excluded(15).
This question allows men who have had sex with other men to donate blood conditional on their not having engaged in high-risk activity.
Since this reformed donor screening policy was put in place the number of HIV infections through blood transfusion has been reduced by two thirds(16).
Spain shares with Italy a safety-of-sexual-partner screening policy. Gender of sexual partner is irrelevant.
And as with Italy, Spain’s policy has not resulted in an increase in HIV infection through blood transfusion.
Indeed, according to the Spanish Ministry for Health, the number of HIV infections which have occurred through blood donation has been reduced to one sixth of the rate which prevailed before the new policy was put in place(17).
The Spanish and Italian experience strongly suggests that replacing the current gay blood ban with a policy that screens for unsafe sexual activity would actually increase the safety of the blood supply.
Footnotes:
1. ARCBS defence to complaint of unlawful discrimination 05/08/001ps, pii, p35
2. ibid, p13, 24 & 25
3. ibid, p27
4. ibid, p27
5. ibid, p31-32
6. ibid, p27
7. US Centers for Disease Control, (ARCBS defence, attachment no23),
8. Chadborn et al, "Trends in, and determinants of, HIV testing at genitourinary medicine clinics and general practice in England, 1990-2000, p145 (ARCBS defence, attachment no40)
9. Stolte et al "Homosexual men change to risky sex when perceiving less threat of HIV/AIDS since availability of highly active antiretroviral therapy: a longitudinal study (ARCBS defence, attachment no36)
10. Sanchez et al, "The impact of male-to-male sexual experience on risk profiles of blood donors", Transfusion 45, March 2005, (ARCBS defence, attachment no33)
11. Soldan, K., and K. Sinka, "Evaluation of the de-selection of men who have had sex with men from blood donation in England, Vox Sanguinis 84 (4), May 2003, p265 (ARCBS defence, attachment no16)
12. Germain, M., RS Remis, and G. Delage, "The risks and benefits of accepting men who have had sex with men as blood donors", Transfusion 43, January 2003, p25 (ARCBS defence, attachment no45)
13. Soldan and Sinka op cit, p1
14. ‘Protocols to certify the requirements of the blood donor’. As found in Official Journal no. 78 of 6 April 2001.
15. Question 38 of the AVIS blood donor declaration. As found at http://www.avis.it/repository/cont_schedemm/247_documento.pdf (Accessed 26th January 2006).
16. Aggiornamento dei casi di AIDS notificati in Italia e delle nuove diagnosi di infezione da HIV, Table 7, Ministero della Salute, December, 2004
17. HIV/AIDS Epidemiological Surveillance in Spain: National Register of AIDS Cases, Table 3, Ministerio de Sanidad y Consumo, June 2005.