The BLS Advocate

Op-Ed: The Played OUT Ban on MSM Blood Donations

When I was younger, I found a certain rerun of Beverly Hills 90210 unexpectedly romantic: Dylan took Brenda to donate blood on Valentine’s Day. Frankly, I did not care for either character; it was the act of donating that mattered. See, not long before seeing this episode I was still in Hebrew School, where I learned about Maimonides’ levels of giving. Specifically, Maimonides wrote that a donation where the donor and recipient are unknown to one another is one of the highest, most honorable acts of human kindness. I would later discover that not only was this episode part of the larger plot of making teenage girls across America swoon for the insipid Dylan, it was largely a heterosexual fantasy.

Question 34 on the FDA’s approved screening tool for blood donors asks male donors: “From 1977 to the present, have you…had sexual contact with another male, even once?”[1]  Men who respond “yes” to this question are indefinitely deferred—i.e., banned—from donating blood in order to prevent HIV from entering blood reserves.[2]

Recently, I learned that as the nation grapples with DOMA to cheers from many of my fellow law students, even some of those students were unaware of this policy, but they were disgusted to learn the policy existed. However, to immediately dismiss the policy is to ignore what is really an exercise of caution. Although contested since adoption, the policy was easier to justify when the tragic story of Ryan White made the frightening possibility of HIV entering the blood supply, a reality. Part of the problem is that the shelf life of a blood donation is shorter than the incubation period for HIV. However, that justification proves to be unsatisfying.

Even speaking as someone who is banned under the policy, I am tempted to view it as sensible: If a subset of the population is disproportionately more likely to test positive for HIV, then the public health doctrine of “Better Safe than Sorry” holds that it is reasonable for the government to create a minimally restrictive quarantine of that subset provided that the government can balance the restriction against the costs to and interests of the public good.

Yet, even if one accepts that men who have had sexual contact with men since 1977 (MSMs) are more likely to test positive, that premise conveniently ignores the fact that this self-identifying group as a whole is far, far smaller than the rest of the population. Tellingly, question 35 of the screening tool directly asks about every donor’s HIV status.

The real purpose of question 34 is to weed out those men who do not know their status, and those whose test results return false negatives. This suggests that an MSM who does not know his status is more likely to donate HIV positive blood than a steadfastly heterosexual person. Restated, the MSM donor deferral policy could not exist without the preposterous assumption that heterosexuals who do not know their status, or have false negatives, will somehow provide HIV-positive blood donations in fewer numbers than MSMs, even though the population of heterosexual men and women exceeds that of self-identifying MSMs in droves. Instead of confronting and testing this assumption, it is easier to screen out MSMs.

And ladies, I know from conversations overheard at the blood drive table that question 21 has caused many of you to take pause: “In the past 12 months…[have you] had sexual contact with a male who has ever had sexual contact with another male?”[3]  This question is tricky, but I think it gets to the heart of the problem.

When Brenda and Dylan finally “went all the way” at the spring dance, how could Brenda reasonably have known whether or not Dylan had ever had sex with another man? Would she have thought to ask? Would he have told her? She was only thinking about losing her virginity and the fear of HIV transmission would have overcomplicated that scripted narrative.

Does magically knowing whether your man has ever had sex with another man really give you a decreased risk? Does it objectively decrease the likelihood that he is HIV-positive if he has not had sex with another man?

It may put you at ease to know the answer for an entirely different set of reasons,[4] but the truth is that knowledge of your partner’s sexual history, per se, informs you of nothing unless you have the only real conversation about HIV that matters: when did you last get tested and what is your HIV status? Unfortunately, some refuse to ask, others lack the language to have the conversation, and for the rest, let’s face it, the conversation itself is a tough one to have.

The real problem—the problem that the questionnaire continues to get wrong—is that sexual diversity in society renders it an ambitious task to effectively screen out high-risk sexual practices. The very topic forces us to confront questions that are difficult to discuss in the places they most need to be discussed, by the people who need to discuss them most. Ambiguities are no help at a blood donation site. In this light, the most honest answers to question 21 induce a homophobic panic: In the last year, have you had sexual contact with a man who has had sex with men? “Maybe,” “probably,” “more likely yes than no,” “more likely no than yes,” or “not sure.”  On the other hand, an honest male donor should have a clear answer to question 34.

In recent years there has been increased recognition from multiple credible sources—including the medical community, the American Red Cross, and even our blood banks—that the policy is overbroad and scientifically unwarranted.

In June 2012, several elected officials, including New York’s own Senator Kirsten Gillibrand, sent a thank you letter to the Department of Health and Human Services for supporting a reexamination of this almost 30 year-old policy.[5]

In conjunction with this semester’s blood drive, OUTLaws partnered with BLSPI to collect signatures to send our own thank you note to Senator Gillibrand for opposing the ban. Responses were predictably varied. Some asked what the rationale was for the policy. One student, echoing my own sentiments, said he typically just walked right by blood drive signs. Another student said he gave blood regularly before he “came out.”  It is something MSMs have begrudgingly learned to live with. Touchingly, most students were outraged by the policy. Even more touchingly, little explanation was needed.

OUTLaws and BLSPI collected over 100 signatures and will be sending the letter to Senator Gillibrand in early November. A special “thank you” goes out to all of you who signed and all of you who donated your time and energy to collect signatures. For those who wish to sign on, please email me at peter.travitsky@brooklaw.edu.

Op-Ed: Community Convergence

I believe in change. My education at Brooklyn Law School has made me more aware of the vast inequalities of our legal system. Through my clinical practice and legal experience I am better suited to question social structures and privilege in an effort to create systemic change. Through awareness and action, I have come to reflect on the privilege of being a law student, the resources available to me, and the duty to serve my greater community.

Upon returning to BLS this semester, I was surprised to hear a fellow OUTLaws member suggest that our student organization should not promote fundraising events for external entities. I took this to mean that he believed that OUTLaws had become too political and that our efforts should be confined to 250 Joralemon Street. Since the majority of student organizations at BLS raise funds throughout the year for various purposes, it is not clear why this student singled out OUTLaws’ initiatives. It is noteworthy, however, when a member of a group that represents a disenfranchised population avoids recognizing the imprint we as law students have on our community. Such thinking too easily dismisses the duty that oppressed populations have toward one another in fostering societal and economic equality, as well as developing a legacy of cultural heritage.

I am incredibly proud that last year OUTLaws, NLG and BLSPI co-produced the first-ever joint fundraiser for the Peter Cicchino Youth Project (PCYP) as a kick-off event for our respective organizations. PYCP was created to reach out to homeless and indigent LGBT youth and help stabilize their lives. This year, twelve BLS student organizations have joined forces to again host the event. In light of the economic downturn and reduced governmental funding for non-profit organizations, fundraising and outreach is all the more important in ensuring the longevity of programs such as PCYP, which support underserved populations. The funds raised by our event will be used to support the critical work of PCYP, such as paying immigration filing fees, offsetting the cost of name change petitions and subsidizing transportation costs for clients to and from court and meetings with their attorneys.

Community development initiatives, such as hosting fundraisers, implementing charitable drives and advancing volunteerism for local non-profit organizations, are important components of student leadership. They are also an opportunity for students to reflect on privilege. The fact that we are attaining an advanced degree, have the ability to control the hours in which we work and have myriad resources readily available to us is a reflection of such privilege. A commitment to public service is among the values that should be fostered in law students from the moment they arrive at BLS. As Chief Judge Lippman stated when he announced mandatory pro bono requirement for admission to the New York State Bar, “We think that if you want that privilege, that honor of practicing law in the state of New York…then you are going to have to demonstrate that you believe in our values.”

Organizing and participating in projects that promote civic responsibility has reminded me to focus on both reflection and action. It has taught me more about human aspirations and motives than classroom instruction has. It has also reminded me to really see my clients for the complex, undiminished people they are, to take notice of relationships, and to look hard at who I am and the type of attorney I wish to become. Through community service programs, my hope is that BLS students will take notice of their privilege and use it to help guarantee the transformation of society and legal systems.

Kathryn Hensley is a 3L at BLS and a proud graduate of Antioch College.  She is the 2011-2013 Co-Chair of OUTLaws and 2012-13 BLSPI Community Development Co-Chair. She is a Bergstrom Child Welfare Law Fellow, Equal Justice America Fellow and Equal Justice Works Summer Corps Recipient. 

SALDF, BLSPI Bring Prominent Animal Rights Activist to BLS

By day, Steven M. Wise practices “animal slave law” — a term he coined himself. But he is best known for his writings “about a world that doesn’t exist” — a world in which nonhuman animals are no longer viewed as property, but as persons.

That might sound crazy, but as one student commented when Wise visited BLS on November 11, U.S. law treats corporations as persons — so why not nonhuman animals?

Wise’s lecture, held at the Subotnick Center, was hosted by adjunct animal law professor Mariann Sullivan, and co-sponsored by BLSPI and the BLS Student Animal Legal Defense Fund (SALDF).

“While most of us are trying to figure out ways to work within the current legal framework, which regards animals as mere property with little to no legally recognizable interests of their own, Steve is assembling the building blocks for a future where this is no longer necessary,” said SALDF co-chair Cody Carlson.

“He refers to this as ‘legal personhood,’ but I think soon we’ll be referring to it as ‘common sense.’”

Wise is the director of the Nonhuman Rights Project, which has spent the last six years crafting legal arguments to change the way the law treats nonhuman animals.

“There is a great, thick, high legal wall that separates humans from everyone else,” said Wise.

The Nonhuman Rights Project seeks to break down that wall, by looking to the oldest, most elastic source of law: the common law.

Why not the constitution? Because Roe v. Wade already established that young fetuses are not persons, so courts would likely use that precedent to determine that nonhuman animals cannot attain legal personhood, Wise said. He believes it is unwise to ask for legal rights for animals that human beings themselves have not attained.

To illustrate the promise of the common law, Wise told the story of James Somerset, a slave who used the common law writ of habeas corpus to successfully contest his imprisonment. Wise hopes that a judge would find it to be “just as odious” to take an orca from the wild and put it into a tank as it was to imprison James Somerset based on his race.

The Nonhuman Rights Project intends to begin filing cases in 2013 to begin establishing legal rights for nonhuman animals, focusing first on the animals with the strongest cognitive abilities. This list may include great apes, bottle-nosed dolphins, African gray parrots, and other animals with “an excess of autonomy.”

The Project has everyone from sociologists to scientists to computational biologists working to determine just the right animal to defend and just the right judge to hear the first case.

Wise finished his lecture with a clear message before opening it up to questions from the audience: “We shall prevail. Nonhuman animals are going to get rights. The end.”

“For me, the main takeaway was the role common law can play for progressive activists,” said Carlson, “since as he pointed out, it provides broad discretion to create judge-made law, and is intended to adapt to evolving social mores. Considering that our legal system is still grounded in pre-Darwinian thinking, this is a welcome avenue for modernization.

Anyone interested in performing legal research for the Nonhuman Rights Project on a volunteer basis should contact wiseboston@aol.com

Legally in Love: Are You Suffering from B.L.S.G.?

Welcome to Brooklyn Law School – a tier-two legal institution where acquiring a full-time dean is impossible and models frolic in lingerie about the library. Whether you just started a month ago or are finishing up soon, there is a high probability you have had – or will have – B.L.S.G.:

“B.L.S.G” – Brooklyn Law School Goggles: a phenomenon in which one’s minimal contact with lay persons combined with an ever increasing exposure to 250 Joralemon makes unattractive persons appear beautiful.

For those of you who are married or in a committed relationship with a “lay person,” this column is not for you. And while the textualist definition of B.L.S.G. refers specifically to Brooklyn Law Students, this can be extrapolated to those unfortunate occurrences where, out in the NYC jungle, your lips were glued to a stranger you were subconsciously aware was way beneath you.

Broad or narrow – it doesn’t really matter. Spending the majority of your time surrounded by florescent lights between floors 4-6 starts to take its toll on your version of what a “reasonably prudent partner” should be. Your laptop and overly priced textbooks can’t offer you the warmth of someone’s arms and excitement over discussing Scalia-isms. If this continues beyond just a few quick hookups, it’s custom to then find simple excuses for the major hiccups in a very unstable “relationship.” I can point and laugh when I hear about another BLSG case, but I will never judge having been there more times than I would like to admit.

Photo courtesy of BLSPI

For instance, though fully aware that several of my past B.L.S.G.s would be in attendance, I could not resist checking out the BLSPI-ILS Halloween Party last Thursday. My first thought when walking into Geraldo’s: “WTF….I am now having a warped Saved By The Bell-John Hughes high school experience.” Indeed, there were some solid costumes – a difficult first prize tossup between Kuklin and Edward Scissor Hands. The drunkenness then continued to Last Exit for the “date auction,” organized by IALSA and co-sponsored by OutLaws, ILS and APALSA. This was a first for me, and quite mind boggling: I can’t say I have ever seen a vampire auction off twenty-something year olds like pieces of fresh meat. I was silently horrified, though I couldn’t help laughing at the bug-eyed bumblebee shaking his lights, Harry Potter’s magic tricks, and Captain America letting it all hang out.

In the end, I am glad I witnessed this spectacle. Of course I had some amazingly awkward interactions with my B.L.S.G.s – this is just the price I now pay for past “goggled” decisions. I have no regrets, though I hope you will learn from my mistakes when dealing with your own B.L.S.G.

Check back next week for more of Lizzie B’s adventures in the BLS dating scene.

Correction: An earlier version of this article misidentified the sponsors of the Halloween date auction as BLSPI-ILS. BLSPI sponsored the party, but not the auction.