History of Rainbow Flag Health Services
Part II: Fighting Discrimination
From the beginning, Rainbow Flag Health Services existed in a regulatory gray zone. Federal and state authorities had never anticipated a sperm bank that openly accepted gay men as donors, nor one built around known donors rather than anonymity. What followed was a prolonged and often adversarial struggle with regulators, industry leaders, and professional organizations over who had the right to reproduce and under what conditions.
Leland Traiman, RN/FNP, maintained a working relationship with Barbara Raboy, the first executive director of The Sperm Bank of California. For months, they discussed the development of upcoming California Department of Health Services regulations governing tissue banking. California treated sperm banks as tissue banks, subject to state licensure and oversight by the Department of Public Health under the California Health and Safety Code. Under this framework, any facility collecting, processing, storing, or distributing reproductive tissue, such as sperm, had to hold a valid tissue bank license, a rule that applied from at least July 1992 onward.[1] Raboy repeatedly stated that there was no mention of gay sperm donors in the draft regulations. Only days before the Department of Public Health finalized its report, did she concede that the committee would adopt “high-risk” donor guidelines, effectively excluding gay men. By that point, it was too late for meaningful input.
When Leland attempted to engage directly with the Department of Public Health, he was told that the regulatory meetings were not open to the public. He challenged that assertion, pointing out that DPH was a public entity and that secret meetings violated open-meeting laws. Confronted with this, the department allowed him to attend.
At those meetings, industry leaders, including Dr. Charles Sims of the California Cryobank, had been working with DPH to shape safety regulations. None of the existing commercial sperm banks accepted gay donors or intended to do so. A categorical ban aligned with their business models and posed no cost to them. Leland argued forcefully that excluding gay men was discriminatory and medically unjustified, particularly when donor screening, testing, and quarantine could address actual risk. After hard-fought arguments, the committee of experts and DPH agreed not to include an explicit ban on gay men in their report.
Although a committee convened to draft California tissue-banking regulations in the early 1990s, the state never finalized them. California law authorized the Department of Health Services to adopt detailed rules governing licensed tissue banks, but those regulations remained undeveloped for years, in part because regulators expected forthcoming federal guidance from the FDA and deferred to it rather than issuing their own standards.
At the same time, RESOLVE by The National Infertility Association was retreating from earlier pro-gay positions. When the national office’s pressure mounted, the California support group branch reversed course rather than confront its parent organization. Leland openly criticized the capitulation, calling out what he saw as cowardice and institutionalized bigotry.
In April 1999, the FDA proposed new tissue-banking regulations that would have made it illegal for gay men to donate sperm and would have effectively eliminated fresh insemination with designated donors.[2] Although framed as “guidelines” rather than binding law, these recommendations would have been followed by most tissue banks. Leland argued that the FDA’s approach targeted sexual orientation rather than behavior. He maintained that any donor, regardless of identity, could be safely screened by freezing and quarantining sperm for six months and retesting the donor for HIV and other infections before release.
Leland secured a seat at the FDA table to argue his case directly. The FDA’s proposed rule would have barred any man who had sex with another man in the previous five years from donating sperm, while allowing heterosexual men who engaged in higher-risk behaviors, including sex with prostitutes, to donate. Leland challenged this inconsistency head-on, pointing out that stable monogamous gay men were no more inherently risky than their straight counterparts.
The FDA ultimately backed away from its attempt to ban known donors. While the agency maintained restrictions on anonymous donation, it preserved the ability of gay men to donate sperm as designated donors.[3] That distinction proved critical. It allowed RFHS to continue operating legally and preserved a pathway for gay men to participate in reproduction at a time when most institutions had closed doors.
Following publication of the regulations and guidance, RFHS underwent two aggressive government inspections clearly intended to intimidate.[4] Leland knew the law and complied fully. The FDA ultimately allowed RFHS to continue operating under its existing policies, including acceptance of gay donors. Despite this, only two sperm banks in the world accepted gay sperm donors at the time: Rainbow Flag Health Services and The Sperm Bank of California in Berkeley. TSBC changed its policy under its second executive director, Alice Ruby.
From 1996 through 2005, Leland repeatedly confronted both the California Department of Health Services and the FDA, successfully preventing other attempts at implementation of rules that would have banned gay sperm donors outright. He presented at the University of Iowa College of Law, appeared before the FDA’s Blood Products Advisory Committee, participated in CDC tissue-transplantation conferences, and spoke publicly about these issues long before they entered mainstream discussion.[5]
Leland also worked directly with the California legislature. In 1998, he successfully advocated for amendments to the California Health and Safety Code §1644.5 to formally recognize “designated donors.”[6] This change made it explicit that recipients could consent to assisted reproduction using sperm from a designated donor even if that donor tested reactive for certain infectious diseases, provided informed consent was obtained. This statutory recognition preserved the legality of fresh insemination and known-donor arrangements in California.
In later years, Leland continued to fight legislative attempts to undo those gains. He successfully opposed California bill SB 975 (2010), which would have banned gay sperm donors and fresh insemination with designated donors.[7] He also consulted on AB 1487 (2010), which clarified existing law to allow HIV-positive men to donate sperm at specialized fertility centers capable of separating sperm cells from viral particles.[8]
Throughout this period, Leland remained active in civil-liberties work, serving on the board of the Paul Robeson chapter of the ACLU and later on the board of the ACLU of Northern California. These organizations supported legislative efforts protecting donor and recipient rights, including formal letters backing pro-LGBTQ reproductive policy.
By the end of these battles, Leland Traiman had accomplished what few individuals ever manage against regulatory agencies and industry consensus: he held the line. Through persistence, legal knowledge, and an unwillingness to accept exclusion as inevitable, he preserved a path for gay men to participate openly in reproduction at a time when nearly every institution was trying to close it. His advocacy forced regulators to confront the difference between perceived risk and actual harm, and it helped secure legal recognition for designated donors when anonymity and erasure were the norm. Long before LGBTQ family building was broadly accepted, Leland insisted, often alone, that queer people did not need permission to create families, only fair access and honest medicine.
[1] California Health and Safety Code §§ 1635, 1635.1 (2024), West/FindLaw.
[2] Robert Kim, et al, “Spermatophobia,” guest opinion, Bay Area Reporter (San Francisco, California), 3 Jun 1999; California Digital Newspaper Collection (https://cdnc.ucr.edu/ : accessed 12 January 2021), p 6. And, Tanya Pampalone, “Gay sperm donations could soon be illegal,” article, The San Francisco Examiner (San Francisco, California), 11 Feb 2002; Newspapers.com (https://www.newspapers.com/ : accessed 11 January 2021), image 1.
[3] Zak Szymankski, “Reports of gay sperm ban oversimplified,” article, Bay Area Reporter (San Francisco, California), 12 May 2005; California Digital Newspaper Collection (https://cdnc.ucr.edu/ : accessed 12 January 2021), p 1.
[4] SCSO Roger D. Gawne (Dept. of Health & Human Services, San Francisco District), letter to Leland R. Traiman, 15 October 2008.
[5] Leland Traiman, “Guidelines but No Guidance: GaySpermBank.com vs. FDA,” The Journal of Gender Race & Justice, a Journal of the University of Iowa College of Law, Spring 2006, Vol. 9 No. 3.
[6] California Health and Safety Code § 1644.5 (2024), California Code, Division 2, Chapter 4.2, Donations of Organs, Tissues, or Body Fluids, accessed via FindLaw, https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-1644-5/
[7] California Senate Bill 975 (2009–2010 Reg. Sess.), Tissue Bank Licensing, introduced Feb. 8, 2010, status: Introduced – Dead; California State Legislature.
[8] California Assembly Bill 1487 (2009–2010 Reg. Sess.), An Act to amend Sections 1635, 1644, and 1644.5 of the Health and Safety Code, relating to tissue donation, filed with the Secretary of State September 29, 2010.
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