Van Levy just wanted to give back. The 31-year-old San Diego resident has donated blood for the past 13 years. But when Levy inquired about donating at the San Diego Blood Bank, the response was discouraging.
“It was like this whole runaround on the phone,” Levy said.
Levy is among a growing number of Californians who have a gender marker “X” on their state IDs instead of the traditional “M” or “F” for male or female. Levy identifies as transgender and non-binary (neither exclusively male nor female) and does not use any pronouns — like he, him, she, her or they.
“They kept wanting me to just come in and see the paperwork and go from there," Levy said of the blood bank. Finally, their answer regarding Levy donating was a “no.”
“Being able to give back to my community, give back to humanity, is always something that's vital for me,” Levy told NBC News. “There shouldn't be any reason why I shouldn’t be able to be here more so than somebody else. I don't need blood, and they do.”
The San Diego Blood Bank declined to confirm the details surrounding Levy’s case, which was first reported by ABC 10 News. However, Michele Corbett, a spokesperson for the Blood Bank, said questions surrounding non-binary donors are new for the organization.
“We will be seeking guidance from the FDA and our accrediting body,” Corbett stated in an email. “We appreciate all individuals who seek to save a life through blood donation.”
The issue is much larger than just the San Diego Blood Bank. The Food and Drug Administration (FDA) recommends every donor choose between male and female on donation forms.
That guidance increasingly puts the FDA at odds with eight states and two major metropolitan areas that issue non-binary (or gender-neutral) birth certificates (Washington, New Jersey and New York City), driver’s licenses (Maine, Arkansas, Colorado, Minnesota and Washington, D.C.) or both (Oregon and California). California, where Levy resides, began offering non-binary birth certificates in January 2018 and driver's licenses in January 2019.
In addition to having a non-binary state ID, Levy also has a birth certificate with a gender marker “X.”
Megan McSeveney, a spokesperson for the FDA, said the agency requires certain data for the safety of the donor and recipient, but said that a blood bank’s physician can decide on non-binary donor eligibility.
“Since the health criteria differ depending on gender, a blood establishment may choose to base eligibility on the more restrictive criteria for both male and female donors,” McSeveney said in an email. “However, that particular scenario would have to be specifically outlined [in] the blood establishment’s [standard operating procedure] in order for the donor to be determined eligible to donate.”
LGBTQ advocates have long battled the FDA’s gender screening for blood donations, particularly when it comes to turning away men who have sex with men (MSM). Currently, men who have had sex with men 12 months before giving blood are ineligible. This policy is in place due to MSM's increased risk for HIV infection. Activists, however, claim that practice unnecessarily stigmatizes gay men, since all blood is screened for HIV and other blood-borne pathogens.
Cecilia Chung, co-director of policy and strategic projects at the Transgender Law Center, argues that blood plasma doesn’t have a gender.
“These cases just show the discriminatory nature of asking people for their gender in the context of donating blood,” said Chung. “In turning people away, we are risking creating harm. If they have a rare blood type or if there is a shortage, that would be part of the unintended harm.”
Harper Jean Tobin, director of policy for the National Center for Transgender Equality said Levy’s case demonstrates why the health care system is in need updating to account for trans and non-binary people.
"This is yet another unfortunate example of why plasma donation systems must be modernized to ensure equal and fair treatment without stigma or prejudice,” Tobin said in a statement shared with NBC News.
Other transgender people have also reported widespread difficulty giving blood. In 2016, The Daily Beast found multiple reports of transgender people turned away from blood donation centers because their physical appearance did not match their birth genders. Since that time, the FDA has updated its policy to allow transgender people to self identity. That means a transgender woman can identify herself as female on intake forms just like a woman who is not transgender. Still, issues remain.
The Minnesota Department of Human Rights sued CSL Plasma in Duluth on Thursday for barring a transgender woman from donating blood due to her gender identity. In that case, Alice James alleges that CSL Plasma turned her away only after she transitioned to female. CSL Plasma counters that the state made no effort to resolve the matter before filing suit.
Still, the issue of non-binary IDs in blood donations has largely gone untested in court, in part because just a handful of states offer such IDs.
The battle over federal recognition of non-binary IDs is not just limited to the FDA. Intersex Coloradan Dana Zzyym has been suing the State Department since 2015 over the agency’s refusal to issue non-binary passports. Zzyym won in federal court twice after the department failed to issue the passport following their 2016 win. In February, a judge denied the department’s request to stay the decision in favor of Zzyym.
Non-binary IDs have also been a source of growing pains for major airlines, which have struggled to update their booking systems to accommodate gender markers with “X.” Last month, Airlines for America, the trade organization that represents major airlines, told the The Daily Beast it would be integrating non-binary IDs into its systems. The Transportation Security Administration has already integrated the new IDs into their system.
Still, Levy reports very few places where non-binary identities are actually recognized by the federal or state government. Even in California, where non-binary IDs are in circulation, government agencies are ill-equipped to accommodate non-binary people, Levy said.
“Even my own passport isn't going to acknowledge my identity," Levy lamented. "When the law had changed, and I went in multiple times to the DMV, they told us that they haven't updated their system yet. When I went to go get my social security to get that updated at the time, they didn't have that available.”