The U.S. Food and Drug Administration's antiquated approach to transgender people — that all applicants' sex is determined by the gender assigned them at birth — has quitely resulted in transgender women being incongruously categorized with a group that has been banned from donating blood since 1983: "men who have sex with men."
But as of Monday, one for-profit blood-and-plasma bank in Kent, Wash., is facing legal action for this stance, after a trans woman was turned away, reports the Seattle news station KPLU. Jasmine Kaiser says she attempted to give plasma in exchange for money at CSL Plasma Inc., but was told she could not donate because she was assigned "male at birth."
Further, Kaiser contends, CSL workers informed her that her name would be placed on a "permanent deferral list," and that the plasma center would inform other blood banks of this status. CSL is facing a similar lawsuit from another transgender individual in Minnesota as well, notes KPLU.
Kaiser filed her suit with attorneys from Seattle women's rights group Legal Voice and the Keller Rohrback law firm, who are arguing that CSL has violated a 2006 Washington law prohibiting discrimination based on a person's gender identity. CSL has yet to respond to the suit, but a spokesperson stated that CSL "operates its business in accordance with all applicable industry, state, federal, and international laws, regulations, guidelines, and guidance documents."
While such treatment of trans female blood and plasma donors has gone on for years, one of Kaiser's lawyers, Legal Voice's David Ward told KPLU that now is the right time to push back, as transgender Americans continue to steadily gain rights at the state and federal levels. "It is time that this kind of discrimination be taken seriously and not [to] say, 'Well, why would somebody sue about that?" he explained.
Today, the FDA released draft guidelines to expand on a December announcement that the agency would consider allowing gay and bisexual men to donate blood if they had abstained from sex for one year before donating. But LGBT advocates, including the Human Rights Campaign, say the changes — which call for a donor's gender to be "self-identified and self-reported" — are still "unacceptable," as the regulation stigmatizes gay and bisexual men and possibly trans women.
The draft guidelines are a shift from the FDA's former position, when The Advocate confirmed with FDA spokesperson Tara Goodin that "To the FDA, Everyone Transgender is a Gay Man." In December, Goodin told The Advocate that the FDA "recommends that genetic males be considered as males for donation purposes, even after gender-altering surgery," and "with regard to blood donor deferral policies in general, the ultimate determination of donor suitability is made by the medical director of the blood or plasma establishment," including the possibility of adopting more "stringent" deferral criteria than what the FDA recommends.