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The gay blood ban – a critique of Australia’s blood donation policies

In the 1980s, Australia – alongside many other countries – banned gay and bisexual men from donating blood. This decision was prompted by the HIV/AIDS epidemic, which has resulted in approximately 76 million people becoming infected with HIV since the start of the crisis, and tens of millions of AIDS-related deaths. In Australia, this blanket ban on gay and bisexual donations was revised in 2000 to become a 12-month deferral period – meaning that men who have sex with men (“MSMs”) had to abstain from sexual activity for 12 months prior to donating blood. As of January 2021, this deferral period was once again reduced to 3 months and applies to transgender people as well.

Now, advocates are calling for the abolition of the deferral period entirely. As the nation faces a blood shortage, Australian Red Cross Lifeblood (“Lifeblood”) have called for over 7000 donors to maintain a healthy supply of blood. Despite this call-out, MSMs and transgender people continue to have restrictions placed on their capacity to roll up their sleeves for donating. This can have a serious impact on the mental health of those who are restrained by the deferral period, making them feel excluded, humiliated, and dehumanised.

The legality of the ban

The restriction on blood donations by MSMs and transgender people is regulated by the Therapeutic Goods Association (“TGA”). The TGA is Australia’s regulatory authority for the blood and tissue sector, in charge of administering the Therapeutic Goods Act 1989 (Cth). Lifeblood is a body which is regulated by the TGA, and therefore any amendments to their blood donation policies must be put forward by Lifeblood and approved by the TGA. When considering blood donation policy amendments, the TGA looks at a broad range of risk factors and consults different bodies – such as the Advisory Committee on Biologicals.

It should be noted that despite this policy being legal, there have been many challenges regarding potential discrimination based on sexuality. One of these challenges, heard before the Tasmanian Anti-Discrimination Tribunal, was Cain v Australian Red Cross Society [2009] TASADT 03. Michael Cain contended that the deferral period for the donation of blood by MSMs breached the Anti-Discrimination Act 1998 (Tas) for excluding a group from donating based off of sexuality. Ultimately, the Tribunal affirmed that the Australian Red Cross’ policy was not discriminatory, and that the Australian Red Cross was correct in taking a precautionary approach to protect the public blood supply against the ‘worst case scenario’ of HIV/AIDS contamination.

Current advocacy efforts

Despite these blood donation policies being legal, there is contention as to whether this deferral period should even exist. Advocacy for the abolition of the deferral period has picked up momentum recently, as the UK moved to abolish their gay blood ban in July 2021. This ban was replaced with individual risk assessments for each donor, regardless of sexuality, gender, or the type of sex which donors have. LGBTIQA+ advocacy groups such as Just.Equal Australia have called for Lifeblood to apply to the TGA for a similar type of individual risk assessment process. Rodney Croome – a spokesperson from Just.Equal Australia – has said that the new 3-month deferral period was ‘window dressing at best’ and that it will not significantly increase the amount of safe blood available for transfusion. Furthermore, research conducted by quantitative researcher, Dr Sharon Dane, has found that there is no meaningful risk attached to the replacement of the deferral period with individual risk assessments for each donor.

Now, Just.Equal Australia have launched the ‘Our blood is safe’ petition. It is hoped that the advocacy work of this group, in conjunction with Dr Dane’s modelling will push Lifeblood to undertake a new extensive review, which may result in the abolition of the gay blood ban.

Nicholes Family Lawyers are strong allies of the LGBTIQA+ community, and wholeheartedly support the advocacy for the removal of this deferral period. To sign the petition, visit https://www.equal.org.au/our_blood_is_safe.

By Nicholes Family Lawyers


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