Editor’s Note: This piece by Kyle O’Malley '19 ran in the March 14, 2018 edition of the Virginia Law Weekly, but was inadvertently omitted from the website. The newspaper regrets the error.
In 1983, in response to the AIDS crisis, the FDA implemented a lifetime ban on blood donations from homosexual men who had had sex since 1977. [1] Despite a 2015 revision to that policy, now generally allowing men who have sex with men (MSM) to donate after a year of celibacy, [2] it remains for all practical purposes a lifetime ban on blood donations for many gay and bisexual men—including and especially ironically those who pose zero risk, such as HIV-negative monogamous couples. Heterosexual men, by contrast, are permitted to donate whenever they please, no matter how widespread, anonymous, or risky their sexual activity. [3]This is not because heterosexual men (or their partners) cannot contract HIV. It is because they are not homosexuals. This discriminatory prohibition, even in altered form, exists despite calls from activist and medical groups for the FDA to develop systems for screening donors that do not equate gay sex, risky sex, and HIV. It exists despite the fact that the Red Cross and other blood banks test every unit of blood that they receive.[4]
Nor is it the case, as some argue, that the change to the FDA’s policy (from a lifetime ban for homosexual men to a 12-month ban for men who have sex with men) is a well-reasoned, science-based approach designed to exclude donations only from those engage in risky behavior and is therefore not “discriminatory” in the relevant sense. The logic is that since the ban applies only to men who have had sex with men within the last twelve months – instead of to “homosexual men” over their entire lifetimes – it doesn’t target gay and bisexual men. That is, only the of behavior (homosexual sex) among those possessing a particular nonspurious trait (the male gender) is targeted—their immutable characteristics are simply irrelevant. The FDA isn’t discriminating against you because you are gay; the FDA is discriminating against you because you have had gay sex.
This argument is Panglossian:[5] it fails to fully appreciate that men who have sex with men are predominantly (if not almost exclusively) homosexual or bisexual. To target their behavior is to target their identities. It is to discriminate on the basis of the fundamental expressions that manifest the immutable characteristics that are homosexuality and bisexuality. It is an argument that works, perversely, to cleave our identities from our expressions of them in a way that is dangerous to our liberty—both sexual and civil. Gay and bisexual men, in order to donate, must render themselves sexless; they must effectively become either celibates or heterosexuals to participate in this life-saving act of giving. Gay sex is no longer constituent of homosexuality and the heterosexual majority feels, as a result—dare I say it?—less squeamish.
Thus, a homosexual man whose intimacy is protected under Lawrence[6] and whose marriage is protected under Obergefell[7] is told by the FDA that, because he has been intimate with his lawful husband in the last year, he is no longer able to donate blood to save that husband. Nor of course to save his own children, his friends, his neighbors. His blood, by virtue of his exercise of his constitutional rights, is presumptively tainted—before any answer to the question of his HIV status is ever sought. By seeking and forming powerful public and private bonds in his community—through matrimony, marital intimacy, co-parenthood, etc.—he is unable to form others.
This is the promise of assimilation and participation in civic life undermined by the alienation of stigmatization. And to be a gay man, or a queer or gender-nonconforming person of any kind, is to face these kinds of contradictions and ironies on a daily basis.
It is pedestrian, though correct, for me to say that in America I can be engaged on Sunday and fired on Monday because I was engaged on Sunday. It is perhaps less pedestrian, but by no means less correct, for me to say that if I wake up on Tuesday and choose to go on with my wedding, I must be prepared for the possibility that by Wednesday the Supreme Court will say that, not only may a business owner constitutionally deny me services otherwise offered to the public simply because I am gay, but that the state may not intervene to protect me even if it wants to.[8] By Thursday, I may realize that I live in a society where a great many people beyond my pastry chef—maybe my doctor, or my lawyer, or my insurer?—refuse me service. By the end of the week, I may find that I have my marriage and little else.
If that’s what Kennedy means by “dignity,” he needs a new dictionary.
I look forward to a time when these kinds of uncertainties do not continue to undermine my confidence in the equal status of my citizenship. In the meantime, I try to cope with those uncertainties, as do millions of other LGBTQ Americans.
And so it was with disappointment and surprise that several gay students, myself included, encountered the presence of blood donation services during this institution’s recent “Diversity Week.” A blood bank, at the behest of the SBA, had set up shop in an alcove in Withers Brown. Balloons and tables scattered with applications spilled out into the hall. People came and went, donating blood and saving lives. The world turned. Yet my world kind of stopped. For two days, I had to pass those tables—that life-saving operation—and think about how my love for my partner has precluded my participation. For two days, I had to bear witness to what appeared to be my community’s ignorance or indifference to this discrimination. Notwithstanding the fact that last year the SBA was made aware of the problem. Notwithstanding that this was our Law School’s “Diversity Week.”
Even if the Court and several of the states haven’t committed to sexual orientation nondiscrimination, UVA has purported to. On these Grounds, the “University of Virginia does not discriminate on the basis of . . . gender identity, . . . [or] sexual orientation.”[9] The University’s Office for Equal Opportunity and Civil Rights clarifies that the University’s nondiscrimination policy is enforced except where discrimination is otherwise permitted by law. But whether the FDA’s regulations have the force of law is a separate question than whether the University should stand against discrimination notwithstanding the legal force or permissibility of the FDA’s regulation. That is, quite aside from whether the FDA’s regulation permits this kind of discrimination is the question of whether the University should tolerate the discrimination the FDA’s regulation engenders.
And there are good reasons why the University and its Law School should not tolerate this discrimination, all of which have force independent of the apologetic’s call for tolerance in the name of securing an adequate blood supply. I invite a discussion on these Grounds about why sometimes discriminatory means are substantively wrong, no matter how important their ends, no matter how fair their procedures, and no matter their susceptibility to being mislabeled “not discrimination” at all. Most of all, I hope that no matter our reasonable disagreements about what constitutes sound policy at the FDA, we embrace Professor Buckler’s exhortation, first inscribed upon the edifice of this institution as it was rebuilt into Clark Hall in 1932, to “labor with learning, courage and devotion to preserve liberty and promote justice.”10 That includes liberty and justice for gay students, too. And that starts at home.
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Kyle O'Malley’19
kpo4ua@virginia.edu
[1] https://www.fda.gov/biologicsbloodvaccines/bloodbloodproducts/questionsaboutblood/ ucm108186.htm
[2] https://www.redcrossblood.org/donating-blood/lgbtq-donors
[3] https://www.fda.gov/biologicsbloodvaccines/bloodbloodproducts/questionsaboutblood/ ucm108186.htm
[4] https://www.redcrossblood.org/donating-blood/lgbtq-donors
[5] “Panglossian, adj. and n.”. OED Online. January 2018. Oxford University Press. http://www.oed.com/view/Entry/136838?redirectedFrom=panglossian (accessed March 01, 2018) (“of, relating to, or characteristic of a Pangloss; unwaveringly or unrealistically optimistic”).
[6] 539 U.S. 558
[7] 135 S.Ct. 2584
[8] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018)
[9] https://eocr.virginia.edu/notice-non-discrimination-and-equal-opportunity