Illicit Regulation: A Framework for Challenging the Procedural Validity of the "Gay Blood Ban"

A decades-old Food and Drug Administration policy bars gay and bisexual men from donating blood. Even at the outset, in the early days of the AIDS epidemic, controversy surrounded the policy. The outcry over the policy's discriminatory aspects, however, overshadowed a less sensational characteristic: it fails to satisfy the requirements of the Administrative Procedure Act. This article highlights how that shortcoming undermines the policy's purported binding control over both blood collecting organizations and potential blood donors. The article encourages blood collection organizations to use this analytical framework to challenge this policy and begin accepting donations from gay and bisexual men.