While discrimination against gay people and those of other queer identities might seem less overt today, concealed behind a sea of rainbow capitalism and performative allyship, blatant bigotry still lurks. Recent events have quickly reminded Queer people of this reality: the homophobic killing of a 24-year-old gay man in Spain, within a week of Pride month; the 2021 Census failing to ‘count’ diverse gender and sexual identities; or our very own Defence Minister, Peter Dutton, banning queer recognition events in a hypermasculine department where queer staff are especially vulnerable. Clearly, there are still (Stone)walls standing in the way of equality that are yet to be torn down.
One such barrier remains: the law (effectively) prohibits transgender people and men who have sex with men from donating blood.
Blood donation and distribution in Australia is overseen by LifeBlood, the government-funded branch of the Australian Red Cross: though they are subject to the regulations of the Federal government’s Therapeutic Goods Administration (TGA). To donate, blood stringent eligibility requirements must be met — which, among other things, target a person’s sexual activity. The rationale behind this is presumably to screen for risky practices to prevent sexually transmitted infections (STIs) from entering the blood donation pool. However, rather than assessing sexual practices for risk, the TGA requires that risk is assessed based on population groups. Under current LifeBlood policy, men (including transgender men) and transgender women will be turned away from donating if they have had sex with a man within the preceding three months — regardless of whether this was oral or anal sex, or whether a condom was used. While the policy does not technically make restrictions based on sexual identity — instead focusing on the activity of male-male sex — in reality, this predominantly singles out gay, bisexual and other queer men. Troublingly, by lumping heterosexual transgender women into the same group, the policy also denies their gender expression in treating them like a gay man.
Accordingly, the crux of the problem is that gay men and other queer people who want to donate blood are still told ‘no’ if they are sexually active. This occurs even if they practice safer sex within monogamous relationships and test negative for every STI under the sun. Meanwhile, heterosexual cisgender people can engage in all kinds of risky condom-less sex, with as many people of the opposite sex as they wish, yet still be allowed to donate blood the very next day. It is this unequal treatment which LGBTIQA+ advocates have fought since the blood donation ban was lifelong; then when it became a 12-month celibacy requirement from 2000; through to the current 3-month ‘deferral period’ which commenced in January 2021. While some tentatively celebrated the recent reduction to three months, which was 20 years in the making, many insist that it is mere “window dressing” that does nothing to address the discrimination. Indeed, for most sexually active people, three months of celibacy is no more realistic than twelve. The new policy, just as much as the lifetime ban, punishes queer people for having sex: sending the message that their sex is uniquely ‘dirty’, ‘unnatural’, or ‘sinful’ and thus entrenching the same tired homophobic rhetoric this community has endured forever. On the other hand, LifeBlood and the TGA defend the policy by insisting that their “priority has to be to keep the people who receive donated blood safe”.
When the question seems to be a tension between LGBTIQA+ rights and rights to health, what’s the answer?
The case for health
In the early 1980s, during the peak of the AIDS epidemic and before HIV tests were available, the “tragic reality” saw HIV-infected blood unknowingly donated on numerous occasions, with fatal consequences for the recipients. In the midst of this hysteria, and given reports of rapid HIV transmission within gay communities, in 1983 a lifetime blood donation ban was placed on men who have sex with men. The intertwined anti-gay and anti-HIV stigma which arose from this period was pervasive, and it survives in today’s misinformed public opinions, and watered down, but still restrictive blood donation policies.
Yet, the health concerns are, of course, valid. Just as was the case in the 1980s, today HIV incidence is considerably greater among gay and bisexual men than other groups, who account for two thirds of new HIV infections. The main reason for this disproportionate transmission is that anal sex, which is more common in male-male sex, is more likely to result in abrasions that allow a HIV-positive person’s bodily fluids to enter the body of their sexual partner, thus transmitting the virus. The other key piece of the puzzle is that HIV is undetectable in the blood immediately after infection, and remains undetectable by testing for the duration of the ‘window period’ until markers of infection show up. Accordingly, even though LifeBlood screens all of their blood supply for various STIs and diseases, these screening tests cannot detect HIV if the donor has acquired the infection within the window period. This is why the TGA requires LifeBlood to defer male or transgender donors who have had sex with men, wary that if this sex transmitted HIV, their tests would not pick it up and the health of donees would be compromised.
Still, several factors find this justification for a blanket ban against these marginalised donors without any scientific basis. Firstly, the exclusions make no exception for “zero risk” monogamous relationships where both partners are HIV-negative. They also restrict donations in the case of oral sex, even though its risk of HIV transmission is negligible. The ban imposed on transgender people also seems to have no epidemiological basis, as they consistently represent less than 0.7% of new HIV infections.
Crucially, the ban also ignores the risk currently posed by heterosexual donors, notwithstanding that the last person to donate blood contaminated with HIV in Australia was a heterosexual woman. Anal sex is conducive to HIV and other STI transmission for everyone — not just gay and bisexual men — and according to US data anal sex has now become “more common [among heterosexual adults] than having a twitter account”. Meanwhile, the latest data shows that while HIV rates among gay and bisexual men have fallen dramatically in the past five years (by more than 20%), they remain stable for heterosexuals, even increasing by 14% in 2016-17. The Red Cross’s own report found that even brothel-based female sex workers — who also face the 3-month blood donation ban — have lower STI rates and more frequent condom use than the general heterosexual population. Though this might seem surprising, it makes complete sense when you consider that brothels are subject to strict regulation and monitoring of their workers’ sexual health, on which their career depends. Most concerning of all, only one in three heterosexual people get tested for HIV in their lifetime (far less than gay men), so true rates may be much higher and going undetected.
So, if LifeBlood is, right now, willingly accepting blood from heterosexual donors who engage in unsafe sexual practices in order to meet blood supply, it begs the question whether the deferrals based on sexual activity — whether for men who have sex with men, transgender people, or sex workers — are actually about health concerns at all. Each of these groups face pervasive stigma and shame (though, finally, sex work is being decriminalised in Victoria!), often compounded by other inequities like the racial discrimination queer people of colour endure. Consequently, are blood donation policies simply slapping on an extra layer of discrimination without any medical justification?
The case for discrimination
Despite evidence that the 3-month deferral period is no longer aligned with STI risk, a key opposition to its removal is the TGA’s perception that it is not, in fact — or more importantly, in law — discriminatory. Discrimination is defined in Victoria’s Equal Opportunity Act 2010 as treating someone with a ‘protected attribute’ unfavourably because of that attribute (direct discrimination); or imposing a condition or requirement which is likely to disadvantage people with that attribute, and which is not reasonable (indirect discrimination). Since sexual orientation, gender identity and lawful sexual activity are all protected attributes, it would seem prima facie that the blood donation policies discriminate against gay and bisexual men and transgender people — either directly by treating them differently to heterosexuals and cisgender people, or indirectly by imposing a 3-month celibacy condition. Yet, LifeBlood contends that they are “not discriminating against anyone based on their sexuality”, and that “nobody has the right to donate [blood]”. True enough, this assertion has been supported by a number of unsuccessful legal challenges to these policies over the years: including before VCAT in 1998, the Human Rights and Equal Opportunity Commission in 2007, and the most recent attempt before the Tasmanian Anti-Discrimination Tribunal in Cain v The Australian Red Cross Society in 2009.
These challenges have invariably failed. The decision-makers have taken the view that a deferral from donating is a reasonable restriction, and thus not discriminatory within the legislative meaning, as long as HIV prevalence remains higher among men who have sex with men. LifeBlood’s legal obligations to minimise risk to blood donation recipients are deemed to supersede the recognised stigmatisation of the policies. Yet, critics call the Cain decision “paradoxical”, for acknowledging that “the majority of homosexuals do not pose a risk to the blood supply”, while still finding that “a policy excluding all sexually active homosexuals is not discriminatory”.
Nonetheless, whether the law recognises the discrimination or not, the harm these stigmatising policies cause to already marginalised communities is beyond question. As Toby Halligan reflects, wanting to do something altruistic, and being turned away and told “your blood is considered tainted” because of who you are — “it hurts”. As a gay man, you have to come to terms with the fact that you won’t be able to reproduce (surrogacy aside), no matter how much you long to be a part of the beauty of creating a life. Every LifeBlood ad telling you to ‘Give Life, Give Blood’, feels like a slap in the face reminding you that you can do neither. So, while there may not be a ‘right’ to donate blood, it is something that should not be taken away from marginalised communities without good reason.
Indeed, the Tribunal in Cain foreshadowed “future circumstances where, if there was reliable epidemiology establishing no increase in risk resulting from change to the deferral policy, the principle of equity may be determinative”. Perhaps we have now reached that point. HIV testing technology has come leaps and bounds, with modern Nucleic Acid Testing (NAT) able to detect HIV, on average, within 5.6 days from infection, the absolute maximum being 38 days. This makes the current 3-month deferral excessive, constituting an ‘unreasonable’ condition imposed on men who have sex with men and transgender people (i.e. indirect discrimination). It is quite possible that in a modern legal challenge, the courts would agree.
It’s time for Australia to join the movement for blood equality
Regardless, the reality is that we face a constant shortage of blood supply. Just about every month, LifeBlood makes a new callout for additional donations, and while Australia has avoided the worst of COVID-19 so far, the pandemic has resulted in critical blood shortages around the world. As Rodney Croome from LGBTIQA+ advocacy group 'just.equal' contends, “at a time of crisis… it is vital that all Australians who are not at risk of passing on blood-borne diseases are able to donate… including gay men”. With at least 70% of gay and bisexual men wanting to regularly donate if the law let them, common sense should prevail to meet this demand.
Following this logic, many countries around the globe have rejected their outdated, restrictive policies, and chosen science over stigma: with the UK being the most recent example. The alternative individual risk-based policies were pioneered by Spain, Italy, Chile and Argentina years ago, where blood donors are excluded on the basis of risky sexual practices (e.g. unprotected anal sex with new partners, or multiple partners), rather than gender or sexual orientation. This approach does more than eliminates discrimination: by treating all donors equally, it increases the safety of the blood supply from risky sexual practices by heterosexuals. Indeed, a review published in the American Journal of Public Health concluded that individual risk-based policies “are equally effective in protecting the blood supply,” with no increase in HIV prevalence amongst blood donors.
It seems there is a clear path ahead for the safe and equitable reform of this policy; the removal of one of Australia’s last realms of ‘legal’ exclusion of LGBTIQA+ people. Though, it is important to recognise that the rights which queer people in Australia have won through the decades are not shared in all parts of the world. Today we can afford to be concerned with blood equality, having already achieved decriminalisation of homosexuality, as well as equality of