Rules banning sexually active gay and bi men from donating blood have changed, but that doesn’t mean they’ve improved.

In recent months, hurricanes in Texas and Puerto Rico, wildfires in California, and the mass shooting in Las Vegas have made blood donation even more urgent, and those looking to help came out in droves to donate. But certain eligibility requirements can seriously reduce the number of donors: only 38 percent of the population is technically eligible to donate blood, and only 11 percent of those eligible donate.

One of the Food & Drug Administration’s (FDA) most controversial eligibility requirements restricts men who have had sex with men (MSM) within the past twelve months from donating blood. They defend the rule as a means to reduce the chance of HIV-infected blood entering blood banks. Advocacy groups, however, argue that this restriction is not just outdated, but discriminatory — not to mention a disservice to the American public since the rule turns away perfectly healthy donors willing to help those in need.

Can MSM donate blood?

Men who have sex with men can donate blood, but only if they’ve been abstinent for the past twelve months. That means that, even if you’re in an HIV-negative monogamous relationships or consistently practicing safe sex, you’re still banned from donating so long as you’re sexually active.

As uncomfortably discriminatory as the twelve-month deferral rule may seem, it’s actually something of a step forward: prior to 2015, there was a lifetime ban on MSM from donating blood (even if a man had just one sexual encounter with a man). The lifetime ban dates back to 1983 — the early days of the AIDS crisis — when medical professionals knew little about HIV and hoped to protect the blood supply by prohibiting “high risk” individuals from donating blood. (There is still a lifetime ban on other “high risk” individuals, like those who have engaged in sex work or used intravenous drugs not supplied by a medical professional.)

Read More: Why is LGBTQ-Affirming Healthcare So Hard to Find? 

Why twelve months?

So where did the 12-month idea come from? The FDA says the ban has been designed to reflect how long it takes to detect HIV in the bloodstream. However, since the early 2000s, blood tests can identify HIV within a few weeks of exposure, making the argument in support of a twelve-month ban effectively moot. Critics argue that, because the “science” supporting ban is so easily discredited, the ban itself is blatantly discriminatory. While unprotected anal sex may still be the most common way of transmitting HIV, the factors that make it risky — unprotected sex with multiple partners, failure to get tested, not knowing your HIV status — are not singular to gay men, but apply to everyone who’s sexually active.

I’m lesbian or trans. Can I donate?

It’s complicated. Women who have sex with women are eligible to donate since they’re not considered “high risk.” The rules surrounding trans, intersex, or gender nonconforming individuals are murkier. The guidelines state that, “In the context of the donor history questionnaire, FDA recommends that male or female gender be taken to be self-identified and self-reported.” Because the guidelines don’t say much else, many stories of trans people donating blood detail confused medical professionals unaware of how to ask the right questions, who ultimately turn away perfectly healthy donors.

Read More: A Therapist’s Guide to Living With HIV 

How real is the risk?

Since the 1980s, the risk for HIV transmission through blood transfusion has been effectively eliminated thanks to rigorous blood testing and the donor screening process. Screening donors is absolutely necessary, but preventing MSM from donating blood is an outdated policy reflecting misconceptions that began during the height of the AIDS crisis. Donor eligibility should not be based on who you have sex with, but how you practice sexual health and ultimately, what the test results say. Donors who are HIV-negative and who practice safe sex should be eligible, while those who practice risky, unsafe sexual behavior should be thoroughly screened and possibly deferred — queer and straight alike.

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