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69 Syracuse L. Rev. 611 (2019)
Continuing Stigma: Why the FDA's Policy Deferring Men Who Have Sex with Men from Donating Blood Is Unconstitutional & a Poor Policy Choice

handle is hein.journals/syrlr69 and id is 627 raw text is: CONTINUING STIGMA: WHY THE FDA'S POLICY DEFERRING MEN WHO HAVE SEX WITH MEN FROM DONATING BLOOD IS UNCONSTITUTIONAL & A POOR POLICY CHOICE Michael Varriget CONTENTS INTRODUCTION ......................................... 612 I. HISTORY ........................................ 616 A. Testing and Research Have Changed Significantly Since the Original Ban Was Put into Place ...... .......616 B. LGBT People Have Been Subject to Discrimination for Reasons Other Than Their Association with HIV/AIDS ................................... .... 618 II. HEIGHTENED SCRUTINY SHOULD APPLY TO LAWS DISCRIMINATING ON THE BASIS OF SEXUAL ORIENTATION. 619 A. Gender Discrimination Cases Provide Framework for Heightened Scrutiny .................... 620 B. Previous Cases Dealing with LGBT Discrimination Use More Exacting Scrutiny than Rational Basis .............622 III. THE DEFERRAL VIOLATES THE EQUAL PROTECTION CLAUSE ................................ ........... 625 A. Deferral Is Unnecessary Based Upon Other FDA Regulations and Current Scientific Knowledge .........626 B. The Deferral Singularly Denies Blood Donation Benefits to Men Who Have Sex with Men ................627 C. Proponents of the Deferral Cannot Offer Reasoning Sufficient to Uphold It Under Heightened Scrutiny ... 628 IV. THE DEFERRAL IS A POOR POLICY CHOICE ............. 629 A. Deferral Repeal Would Increase Blood Supply in the United States.. ............................... 629 B. U.S. Peer Countries Have Eliminated Their (or Never Had) Bans and Deferrals ............ ......... 630 C. A Risk-Based Assessment Would Make the Blood Supply Safer While Not Discriminating Against a Particular Group.. ..................................... 631 f J.D. Candidate, Syracuse University College of Law, 2019; M.S. Forensic Science Candidate, Syracuse University, 2019; B.S. Genetics & Legal Studies, University of Wiscon- sin-Madison, 2016. I would like to thank Professor C. Cora True-Frost for her guidance during the note writing process. I would also like to thank my partner, Andrew, and my family and friends for their seemingly endless support.

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