BLOOD DONATION FROM GAY AND BISEXUAL MEN: CONTEXTUALIZING THE APPROVAL OF THE FEDERAL SUPREME COURT

ABSTRACT Objective: to discuss the process of allowing blood donation by the LGBTQIAP+ community by the Federal Supreme Court in contrast to the Legislation of the Regulatory Agency for Blood and Blood Components. Method: this is a reflective study, considering the principles and concepts of Pierre Bourdieu’s symbolic capital as a theoretical-methodological framework. Analysis was carried out in documents that dealt with the permission of blood donation by gay and bisexual men, such as bills, FSC decisions and media materials relevant to the proposed theme. Results: we argue that two historical events were decisive for the vote on the act of unconstitutionality by the Federal Supreme Court: the mobilization of lesbian, gay, bisexual and transgender social movements and the coronavirus pandemic. Conclusion: validation of the right to blood donation contributes to the exercise of citizenship of lesbian, gay, bisexual and transgender people.


INTRODUCTION
This reflective essay aims to discuss the permission of blood donation by gay and bisexual men, as well as the community of Lesbians, Gays, Bisexuals, Transsexuals, Transgenders, Transvestites, Queer, Intersex, Asexual, Agender, Pansexual, Polysexual and other sexual orientations and gender identities that understand that diversity is fluid and changeable (LGBTQIAP+) by the Federal Supreme Court (FSC) in opposition to the Legislation of the Regulatory Agency for Blood and Blood Components (ANVISA (Agência Nacional de Vigilância Sanitária -Brazilian National Health Regulatory Agency).
The proposed theoretical-reflective article is the result of the analysis of the approval of blood donation of gay and bisexual men by FSC in 2020 based on symbolic capital.To do so, we will move on to the discussion on the field of hemotherapy and HIV/AIDS, analyzing documents such as bills, FSC decisions and media material related to blood donation that address the theme in the social, scientific and empirical fields that permeate blood therapy in the LGBTQIAP+ community in Brazil.

HEMOTHERAPY AND HIV/AIDS
Hemotherapy is an area of specialized knowledge that belongs to the field of health sciences.In Brazil, this area took a while to establish itself, when compared to the rest of the world.In 1965, the Brazilian National Hemotherapy Commission (CNH -Comissão Nacional de Hemoterapia) was created by the military, because it was realized shortly after the 1964 coup that Brazil did not have a hemotherapy reserve in case of armed confrontation 1.Still in this period, blood donation started to be instituted as a voluntary, altruistic act and characterized as a civic duty.For several years afterwards, the CNH began to institute several ordinances that determined a series of actions and norms for using blood and components in Brazil, such as standards for clinical screening of donors, standards for serological screening of syphilis and Chagas disease (among other diseases) and conditions for definitive and temporary rejection of donors, according to their situation, including definitive rejection for people with syphilis, chagas disease and hepatitis and temporary rejection for people with malaria 1.In Brazil, the first case of AIDS was diagnosed in São Paulo in 1982.It was a disease that little was known about.The fear of the unknown generated a great social phobia and the strengthening of prejudice and stigmatization of homosexuals 2. It is important to point out that the pathologization of homosexuality began at the end of the 19 th century with its introduction into the field of psychopathology, by Krafft-Ebing, in 1894.In this manual, it was considered that everything that deviated from "normality" (male hegemony, heterosexual) was considerably a perversion.In Brazil, homosexuality was included in medical and legal manuals -both in the DSM (Diagnostic and Statistical of Mental Disorders and in the ICD (International Statistical Classification of Diseases and Related Health Problems) -with different terminologies that were based on theoretical assumptions about the origin of homosexuality, such as genetic, hormonal or social/family conditions (conditions of family upbringing) 3-5.The dissociation of homosexuality as a disease only occurred in 1990, with the removal of item homosexuality as a disease related to mental disorders.However, other sexual "deviations", such as transsexuality, still remained in the ICD until June 2018, when it ceased to be considered a disease 5. Despite the depathologization of homosexuals in medical lists and manuals, from 1981 onwards, homosexuals became objects of study, being framed as "promiscuous" by their sexual culture, as shown by Michael Pollak 6. Gay men's sexual practices, which could involve multiple partnerships, became the contributing factor for impeding blood donation.As Sedgwick argued, in the "Epistemology of the closet", legal forms codified a torturous system of oppression of gay identity and thus limited the basis of existence of an entire group that suffered oppression in the middle of the 20 th century 7:26.

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The advent of AIDS forced the government to intensify sanitary inspection, generating stricter control over blood-transmitted diseases.Until then, there were commercialization practices of blood and its components that weakened the safety of both donors and recipients (patients), and even allowed the smuggling of blood products 1.In the US and Europe, the classification of sources of risk and transmission had already determined "the 5Hs" (homosexuals, hemophiliacs, Haitians, heroin addicts -injecting heroin users and hookers) as "culprits" of transmitting the hitherto little-known disease.Such people began to be registered in the medical literature of the time as risk groups for HIV/AIDS transmission.In this regard, information was conveyed by radio and television media that constructed meanings and generated a great impact on homosexuals' and bisexuals' lives 2. The overview at the time was complex.There was an increase in the number of cases of HIV/AIDS in Brazil, while stigmatization and prejudice isolated the male homosexual population.At the same time, the State was slow to manage blood quality and safety.Civil society groups began to mobilize in search of answers, treatments and safety both for blood bank users (haemophiliac patients and others), for disease prevention, and for people living with HIV/AIDS who had not yet received their treatment.guaranteed by the government.Civil society groups were composed of social actors from non-governmental entities, researchers and scientists, and professionals from various areas of knowledge, with the purpose of representing society's interest in the fight against HIV/AIDS 1.
In the field of hemotherapy, blood donation legislation has imputed to male homosexuals the definitive inability to donate blood due to risks of HIV transmission through blood, as they are part of a risk group for the disease 1,8-9.Remember, donating blood is considered a solidary, voluntary and altruistic act.Any and all citizens who are able and do not pose risks to recipients of the collected blood can donate blood in accordance with the first and third articles of the Constitution of the Federative Republic of Brazil of 1988 10 , which deals with human dignity and rejects any form of discrimination, respectively.
Only in 2002 did this situation begin to be reexamined.The review of legislation on hemotherapy in Brazil, following the precepts of the US federal agency -Food and Drug Administration (FDA), modified the temporality of inability, resulting that men who had sex with other men (MSM) could donate blood if they stayed 12 months without having sexual relations with their partners, and it was considered that in this way it would be possible to reduce risks of HIV and hepatitis transmission 11.From a symbolic point of view, the event of blood donation meant coming out and confessing to an unknown social agent 7.In this regard, "policing" clinical screening consultation for blood donation was legitimized.
This routine remained for a long 19 years until a Direct Action of Unconstitutionality (DAU) was filed in 2016 at the FSC.Only in 2020 did the FSC finalize the vote on this DAU and determined an unconstitutional act not to allow blood donation by MSM and bisexuals and by the entire LGBTQIAP+ community.The voting act was enacted in May 2020 12.We will come back to it later.

THE PROCESS OF STRUGGLE FOR BLOOD DONATION BY THE LGBTQIAP+ COMMUNITY IN BRAZIL: FROM RISK TO PERMISSIVENESS
The process of fighting for the right of LGBTQIAP+ to donate blood began in 2003 with Bill 287 authored by congresswoman Laura Carneiro, which justifies in her text that the rejection of blood donors due to sexual orientation constitutes an act of prejudice and violation of guaranteed right 13.In 2008, congresswoman Sueli Vidigal presents Bill 4,373, showing the lack of blood bags, the increase in demand and the need for transfusions, showing that people want to donate blood and are neglected by the State due to a discriminatory act due to their sexual orientation 14.This bill was archived by the plenary in 2015 and, in the same year, deputy Sergio Vidigal proposed a new 5/13 bill (Bill 40) referring to the archived project of 2008 and maintaining the previous justifications. 15nsuccessfully, in 2016 deputy Jean Wyllys proposed Bill 6,297 justifying the discriminatory condition given to blood donation by MSM and bisexuals and the risk group terminology, which encourages the maintenance of stigmatization by society 16.In this same period, social agents such as specialists in the subject, lawyers, doctors and civilians participating in associations and social movements on dignity, diversity and LGBTQIAP+ rights (Amicus Curie) filed a DAU 5,543, which contests the terms referred to MSM in Ordinance 158 of 2016 of the Ministry of Health 17 and in Resolution 34 of 2014 of ANVISA 18 , which adds to this population increased risks of HIV transmission.
The last bill on blood donation by gay and bisexual men, filed on July 1, 2020 in the Chamber of Deputies, was 3,598 by deputy João H. Campos.The bill aimed to encourage regularization by ANVISA, which until then had not accepted the FSC decision.In this regard, the blood collection units prevented the donation of LGBTQIAP+ 19.However, after being prohibited by the FSC the restriction of blood donation based on determination of ethnic concepts, gender, color, sexual orientation or any other discriminatory direction, ANVISA only revoked the rule that prevented blood donation by MSM more than a month after FSC decision."The Federal Supreme Court's decision goes against the idea that it cannot be defined who should donate blood based on a sexual orientation and who contract an STD (Sexually Transmitted Disease) is related to an individual's sexual practices and behaviors, not their sexual orientation" 12:1.The Brazilian Socialist Party (PSB -Partido Socialista Brasileiro), along with all the institutions it represented through the DAU, sought the human right of equality between people who make themselves available to practice blood donation, without prejudiced or discriminatory manifestations in relation to their sexual orientation, in order to challenge the Collegiate Board Resolution (RDC -Resolução da Diretoria Colegiada) 34/2014 of ANVISA and Ordinance 158/2016 of the Ministry of Health in its articles 25 and 64, respectively, and that they were unconstitutional due to the fact of violating human rights by judging homosexuals as dangerous and belonging to a risk group.
It is important to point out that in 2013, in Chile, and in 2015, in Argentina 20 , the prohibitions on blood donation by homosexuals had already been revoked, being an important achievement in Latin America with regard to the fight for human dignity against prejudice and discrimination."Donor selection must be based on strictly technical and safety criteria, both for donors and potential recipients, without conditions of arbitrary discrimination such as sexual orientation, politics, religion or any other nature in that sense, points out a new rule" 21.In 2017, the Brazilian jurist and FSC's minister Luis Edson Fachin expressed in his report, among other considerations, that "the norm violates the way of being and existing of these people and the foundation of respect for diversity and human dignity and affronts the autonomy of those who wish to donate blood, which is limited not for medical or scientific reasons" 12:32 .:32 , said the jurist."These norms, even if unintentionally, result in offending the human person's dignity in its dimension of autonomy and recognition, because it prevents the people covered by it from being as they are" 12:33 , he added.
Until then, in addition to minister Fachin, ministers Luís Roberto Barroso, Luiz Fux and Rosa Weber had voted for the DAU's origin, while Minister Alexandre de Moraes opened a partial divergence.He proposed that homosexuals could donate blood as long as the collected material was stored by 6/13 the laboratory, waiting for the window period, to carry out the serological screening tests and, only after that, donation could be carried out.
Such placement by Minister Alexandre de Moraes shows lack of knowledge of practices and techniques in the field of hemotherapy.An immunological window has time variability according to the serological tests available on the market and the units collected from volunteers have an expiration date according to the anticoagulant substance present in the collection material (bag) 22 , which makes the jurist's suggestion in question unfeasible.
The judgment at the FSC was interrupted in October 2017, because Minister Gilmar Mendes asked for a review (more time to analyze the case) of the process.
Only in 2020 did the FSC resume the points that had long been discussed about the issue of the right and the legal guarantee of blood donation by MSM.The process was then reopened with voting scheduled for March 11, 2020.

THE DIRECT ACTION OF UNCONSTITUTIONALITY
Minister Gilmar Mendes argued that the measure preventing blood donation was discriminatory, since MSM can use protective measures such as condoms and would still be considered unfit by the rules analyzed by him.Not by chance, he paid attention to the moment of the pandemic and the drop in the number of blood donations in blood centers.Ministers Alexandre de Moraes, Marco Aurélio, Ricardo Lewandowski and Celso de Mello dismissed the request.Therefore, with 7 votes in favor, DAU approved blood donation by the LGBTQIAP+ community with immediate action by the responsible bodies.
Chart 1 below presents the reports of FSC ministers and representatives of social movements of LGBTQIAP+ on their positions in favor or against the permission of blood donation from gay and bisexual men 23:7-12.Chart 1 -Reporting of actors involved in the vote on DAU 5,543.Brasília, 2017-2020.

In favor of LGBTQIAP+ blood donation
Brazilian Institute of Family Law (IBDFAM -Instituto Brasileiro de Direito de Família), Amicus Curiae, defended blood donation as a right to citizenship and that ANVISA assumed that homosexuals were promiscuous, in a totally prejudiced way.Inability for 12 months was disproportionate, and international treaties endorse LGBTQIAP+ rights as human rights.
Dignidade Group -For the Citizenship of Gays, Lesbians and Transgenders (Grupo Dignidade -Pela Cidadania de Gays, Lésbicas e Transgêneros) raised that there should not be any discrimination in blood donation and that such difference promotes a hierarchy that violates the constitutional principle of isonomy.
Brazilian Institute of Civil Law (IBDCIVIL -Instituto Brasileiro de Direito Civil), as Amicus Curiae, said that the bioethical principle of precaution, in fact, brings with it precautionary measures to prevent damage from materializing and that this ineptitude restricts the right to fraternity to free blood donation.
Federal Public Defender's Office (DPU -Defensoria Pública da União) highlighted that a statistical stereotype is used when an individual is attributed a certain characteristic that is believed to be relevant to the social group to which they belong.

Constitutionalism and Democracy Research Nucleus of the Universidade Federal do Paraná
(UFPR) explained that, in France in 2016, the principle of non-discrimination against MSM for blood donation was openly affirmed, which was followed by several other countries, such as Italy, Spain, Poland, Portugal and Latvia.
Brazilian National Association of Public Defenders (ANADEP -Associação Nacional dos Defensores Públicos) was in the sense that ANVISA, in item 25 of its statement, stated that it was based on a study by the World Health Organization (WHO), which, in fact, never mentions blood donation and recommends respect for human rights and non-discrimination in health care, not recommending, in any way, a temporary ban on blood donation for MSM.

In favor of LGBTQIAP+ blood donation
Minister Edson Fachin voted for the merits of the requests of the action because he understands that there is a violation of respect for diversity which, here, translates into respect for human beings' dignity.He explained that, although there is no longer a perpetual impediment (in theory) for MSM to donate blood, by requiring 12 months of sexual quarantine, this condition may prove to be a restriction on the possibility of exercising alterity.
Minister Rosa Weber, in her vote, pointed out that FSC must analyze whether or not the form of the regulation and its results imply an affront to constitutional principles.In her view, there is discriminatory treatment arising from the rules under trial.Therefore, the minister accompanied the rapporteur's vote in full, took note of the action and upheld it.
Minister Luiz Fux manifested himself for the unconstitutionality of the norms, claiming that impugned norms are based on the premise that most homosexuals would have HIV, which goes against what researches and epidemiological data say, considering that maintaining the window period for 12 months for MSM is disproportionate, because creating obstacles to blood donation in Brazil is something extremely deleterious, given the great shortage in blood banks.
Minister Luís Roberto Barroso voted for the unconstitutionality of disputed norms, judging them disproportionate, based on the fact that the laboratory window period is 10 to 12 days, there being no reasonable reason for maintaining the period of sexual abstinence of 12 months by male homosexuals.He exposed, as a basis, the case of Mexico 12 which, since 2009, has not prohibited the donation of blood by MSM, noting that there were no cases of HIV contamination in said donations.

Against LGBTQIAP+ blood donation
Minister Alexandre de Moraes, diverging from the rapporteur's vote, voted for partial recognition of the claims of the action on the grounds that, in his view, scientific and technical information still presents relevant information about HIV infection in MSM and bisexual men; then he mentions that European countries determine deadlines equal to or greater than those of Brazil and that this does not represent a discriminatory act.Thus, the minister voted partially because he suggests removing the 12-month quarantine period as long as the blood was only used after an immunological test, which should be carried out after the serological window defined by health authorities.
Minister Ricardo Lewandowski justified his vote by saying that he thought it was not up to the FSC, with regard to the window period, to decide on its deadline, and that this should be defined by health authorities.Furthermore, he stated that the Supreme Court must exercise a self-contained behavior in relation to the prescriptions of authorities and health bodies, especially when these are based on technical and scientific probative data.He voted to maintain blood donation restriction by MSM and bisexual men.
Minister Marco Aurélio disagreed with the rapporteur's vote, justifying that although the risk in collecting blood from homosexual men does not result from sexual orientation, the high incidence of contamination observed, when compared to the general population, justifies the caution implemented by the health authorities, in order to enhance public health protection.Even though the measure may be considered severe, in cases where the candidate is declared unfit for twelve months, in the situations provided for in the contested rules, there is a measure consistent with the greater legal good that is intended to be protected -public health.
Minister Celso de Mello also voted for the dismissal of the action based on health professionals' report and epidemiological data from the Ministry of Health.
Analysis of rapporteurs in the chart above shows that of the 14 rapporteurs, only 4 were against the direct action of unconstitutionality.The ministers who voted against the DAU agenda made their justifications in the technical and scientific materials that do not follow up-to-date techniques and results in the field of medical science regarding the effectiveness of serological tests for the prior diagnosis of infections such as HIV, HTLV, syphilis, among others, necessary for blood donors.Those who voted in favor of the agenda were based on the principle of human dignity, emphasizing human rights with regard to non-discriminatory treatment due to their sexual orientation or rashly characterizing them as having HIV just because they are MSM.

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Some Brazilian newspapers of great circulation, such as G1 da Globo, O Estadão, O Correio Braziliense, among others, promoted a huge wave of information following the FSC's approval of blood donation by gay and bisexual men.However, the disclosure on the subject could have been more explored in journalistic networks and political and social information, providing a greater insertion of society in the discussion of the subject.Only the O Correio Braziliense published the article "FSC assesses prejudice in ANVISA's rule on blood donation", on January 13, 2020, reporting that such action was unconstitutional by ANVISA and by the courts, then being contested by LGBTQIAP+ public defense entities and by the action filed by PSB.
We consider that the economic situation that Brazil went through with the SARS-CoV-19 pandemic led to the advancement of the review on blood donation by gay and bisexual men, due to low rates of blood donation and the need for transfusions for critically ill patients in Intensive Care Units.
Since it was a critical moment in the country and due to the number of people hospitalized, the demand for blood use only grew and the stocks in the institutions did not keep up with the flow.A report by Senado Notícias 24 brings the following headline: "The coronavirus pandemic had a negative impact on blood donation at Fundação Hemocentro de Brasília (FHB).Donor movement in the first five months of 2021 is smaller than in the last two years".This call from the Senate corroborates a report by the Public Defender's Office in the newspaper El País 25 that called for speed in voting on DAU 5,543: "the Federal Public Defender's Office (DPU) sent a position asking for speed in the trial in the face of the Covid-19 pandemic, which reduced the pace of donations and resulted in a drop in blood stocks in the country".
Our hypothesis is in line with the study by Park et al 26 , who discussed the pandemic as one of the possible reasons for the changes that occurred in approvals and/or reductions in the period of unsuitability for MSM and bisexual donors in the US.The country's regulatory agency, the FDA, for reasons related to the shortage of blood related to the Covid-19 pandemic, reduced the period of inability for MSM in April 2020.Park et al report that reviews were conducted on the history of HIV testing, treatments and public education and that the severity and urgent need required an immediate reconsideration, which led to the reduction of temporary disqualification from 12 months to 3 months for MSM.Like Canada and the USA, other countries changed their legislation during this period of the SARS-CoV-2 pandemic, still maintaining a deadline for non-sexual activity for a minimum period (according to them) so that blood could be donated.
In addition to the USA and Canada, mentioned above, which underwent legal changes in the permission to donate blood to LGBTQIAP+, Australia and New Zealand join them, with a reduction of inability from 12 months to 3 months.Also, five countries no longer have the 12-month inability for MSM and bisexual blood donation and removed the time restriction, such as Brazil and Hungary, in 2020, and Israel, the Netherlands and the United Kingdom, in 2021.All countries justified their changes on the need to increase blood donors due to the coronavirus pandemic that has turned away many donors.Therefore, the pandemic was predominant for these changes to occur.
Thus, the reduction in blood donation and the increase in blood transfusions in severe Covid-19 patients have driven the changes presented above with regard to the temporality of inability to donate blood in MSM and bisexual men 28.

SOCIAL PRESSURE ON THE DIRECT ACTION OF UNCONSTITUTIONALITY VOTE
We argue that this change of paradigm about blood donation was also the result of the movements made by LGBTQIAP+ groups and associations that managed to show that the community in question is not a propagator of diseases, but that they are individuals with the right to donate their blood without prejudice or discrimination.

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The structuring of non-governmental entities as well as social movements are fundamental for the grounded search for human rights.Through social mobilization, many rights have already been achieved, namely: depathologization of homosexuality and transsexuality in the ICD; right to civil union with legalization mediated by the FSC, in 2011, and by the Brazilian National Council of Justice (NCJ), in 2013; insertion of homophobia as a crime of racism by equivalence by FSC in 2019; and important commemorative dates for the LGBTQIAP+ community such as Gay Pride Day, Stonewall landmark in New York (USA) in the 1970s.
The structuring of a robust and respectful civilization and social policy through social movements is observed by Bourdieu so that "the first conquest of movement is movement itself, its very existence (...) which grows day by day from invisibility, isolation, silence, in short, from non-existence" 27:77, constituting a field with multidimensional space of discussion with different social actors 29.The mobilization to which the author alludes can be seen in Brazil and around the world, which reverberates in examples of collective struggle.Perhaps what is new among contemporary social movements is cyberactivism use.Through technological resources such as smartphones, tablets, social networks and the internet, through the dissemination of information, the instrumentalization of cyberactivism for social movements express a considerable increase in the participation of civil society every day 30.The American social movement Equal Blood claimed, through a manifesto, that all individuals' blood is equal.In Canada, All blood is equal 31 stated: "It's time to end Canada's discriminatory blood donation ban".In Brazil, Equal Blood Br 32 presents its manifesto under the call "Gays have restrictions on donating blood in Brazil.It's time to make some noise".And that is what happened on social media (internet) as the manifesto was opened on several networks such as Instagram ® , Facebook ® and Twitter ® , three of the main and most accessed social media platforms in Brazil and in the world.The mobilization that the Equal Blood Br manifesto proposed took place through several posts and reports on the DAU vote's status by FSC in the pre-vote period.

CONCLUSION
When we reflect on blood donation by gay and bisexual men and the vote by FSC, through the Direct Action of Unconstitutionality 5,543 of 2016, proposed by the Brazilian Socialist Party on the temporary restriction on blood donation by MSM, we can say that the repeal of restrictive acts, imposed by the Ministry of Health and approved by its regulatory agency, ANVISA, currently allows a dignified re-assessment free of stigmas and prejudices for blood donation by gay and bisexual men as well as other members of LGBTQIAP+ so that this assessment takes place regardless of sexual orientation and/or gender identity.
The FSC vote, which prevents blood donation restriction by gay and bisexual men, as well as other members of the community, validates Brazilian citizens' constitutional rights and provides LGBTQIAP+ visibility to achieve recognition of human dignity, of the members of that community by society.