Canada Upholds Gay Blood Ban

A Canadian judge has upheld the ban on blood donations by gay and bisexual men who have had even single sexual encounter with a person of the same gender since 1977, a Sept. 9 story at Canadian news site Cnews.

The case pitted Canadian Blood Services against a donor named Kyle Freeman, who had argued that he was being denied equal treatment and this violated his constitutional rights. Canadian Blood Services had sued Freeman because he had donated blood despite the ban, falsifying his answers on questionnaires over a 12-year period in the process. Freeman's donated blood was found to be positive for syphilis during routine screening. Freeman counter-sued and claimed that his rights under the country's Charter of Rights had been disregarded.

An Ontario Superior Court judge both ruled against Freeman in the suit, and reaffirmed the blood ban, which is similar to the ban imposed by the Food and Drug Administration in the United States.

Critics of the blood ban say that the risk of passing on blood infected with HIV or other diseases is negligible, given modern screening technology. Critics also point out that heterosexuals could also unwittingly be HIV-positive, but they are not barred from giving blood. In the United States, a ban on heterosexual men who have hired prostitutes for sex is in place, but it is only a one-year ban, whereas MSMs who have had sex with other men even once since 1977 are banned for life.

Critics in both the U.S. and Canada have called for a more equitable policy that allows for a period of deferment for both straights and gays following risky sexual activity, including sex without a condom. Canadian Federation of Students spokesperson Brent Farrington told the media that nearly 20% of donated blood comes from university students. "The question should ask if you've engaged in unprotected sex, and how many sexual partners an individual has had," Farrington asserted, according to a Sept. 9 article in Canadian newspaper The Star.

In the United States, a group of lawmakers have called on the FDA to revise its blood policy regarding gays, calling the disparities between how the issue is treated with heterosexuals versus the lifetime blanket ban for gays a matter of discriminatory treatment.

Sen. John Kerry (D-Massachusetts), Rep. Mike Quigley (D-Illinois), and more than 40 members of Congress signed sent a letter in June to the chair of the Health and Human Services Advisory Committee on Blood Safety and Availability. The June 9 letter read, in part, "We join with medical experts at the American Red Cross, America's Blood Centers, AABB, and the American Medical Association, among others, in calling for a change in policy that better reflects the science of high risk behavior for HIV. The time has clearly come to review and modify this policy to strengthen the safety of the blood supply and remove any needless discriminatory rules from the process.

"In the wake of the major blood donor organizations stating that the lifetime ban on MSM blood donors is 'medically and scientifically unwarranted,' we urge you to utilize the most up to date and comprehensive medical and scientific data regarding high risk behaviors in your considerations," the letter added. "In order to improve the integrity of the blood supply, we believe it is imperative that all high risk behaviors be appropriately targeted in the screening process and that similar deferral periods are established for similar risks.

"As the policy currently stands, a number of potential oversights and medically unjustifiable double standards seem apparent," continued the letter. "For instance, there is no prescribed consideration of safer sex practices, individuals who routinely practice unsafe heterosexual sex face no deferral period at all while monogamous and married homosexual partners who practice safe sex are banned for life. In fact, a woman who has sexual relations with an HIV positive male is deferred for one year, while a man who has had sexual relations with another man, even a monogamous partner, is deferred for life.

"Even individuals who have paid prostitutes for heterosexual sex face a deferral period of one year while gay men face a lifetime ban," the letter noted. "These do not strike us as scientifically sound conclusions."

But the judge in the Canadian case, Catherine Aitken, said that patients requiring blood transfusions should not be put at risk, however negligible it may be. People in regular need of transfusions, such as hemophiliacs, the judge opined, "have a history of the system failing them. And if the system fails them again, their lives may be on the line."

Aitken did acknowledge that the ban was offensive to gays, bisexuals, and other men who have sex with men (MSM), writing of "a loss of dignity, a feeling of marginalization, a sense of disappointment, and a sense of injustice" that the ban could cause.

But the judge also pointed out that the issue was not one of sensitivity to gay rights, but rather policies protecting public safety. As such, gays are not the only group denied the ability to donate blood. "Put simply, blood donation is a gift," said Aitken. "A gift is freely offered, but must also be freely received or freely declined. Canadian law has never recognized a duty or requirement to accept a gift."

The ruling was hailed by Canadian Blood Services CEO Dr. Graham Sher. "Every decision we make at CBS is premised on providing safe and secure supply to recipients," said Sher. "That has informed every decision and every policy we have ever made ensuring that safety."

Ban's Affirmation "Disturbing" to Gay Advocates

However, Aitken's ruling was called "disturbing" by GLBT equality advocates, including the Canadian AIDS Society and Egale Canada. Canadian AIDS Society attorney Douglas Elliott noted that the judge referenced the fact that no blood supply crises such as the one from the 1980s--before modern screening techniques were employed--had taken place. Elliott questioned the need for the ban given that three decades had gone by.

"It's an argument we've been making for 10 years," Elliott said, adding, "The court has made it clear that it's unnecessarily broad for safety reasons and we're going to keep fighting for change."

Others feared that the ruling could create a precedent in which government agencies could circumvent anti-discrimination policies simply by outsourcing to outside firms. Part of Freeman's argument was that in being subjected to a questionnaire about his sexuality and sexual history, his constitutional rights were being violated; however, Aitken ruled that this was not the case since the questionnaire was administered by a private company.

York University law professor Bruce Ryder called the precedent "very dangerous because it makes it so easy for governments to avoid their Charter responsibilities. All they have to do is create an arms-length body and refrain from dictating policy. Presto! Charter-free zone," reported Canadian newspaper the Globe and Mail on Sept. 9.

"It's not relevant whether the government is dictating the screening policy," Ryder added. "What is relevant is that we have a body that is implementing a government program."

Elliott agreed on this point, calling the decision "a very, very dangerous precedent." Noted Elliott, "The government doesn't have day-to-day control over the police or Crown attorneys in the courthouses, either. Does that mean they are not government actors?"

Added Elliott, "Set up the Correctional Service Corporation of Canada, have them run the prisons at arm's length from government, and - Bob's your uncle--prisoners have no Charter rights."

In one respect, GLBT equality advocates found a kernel of an argument for their stance contained within Aitken's 188-page ruling, a Sept. 9 Canadian Press story said. Aitken allowed that were the Charter of Rights to be applicable to the blood ban, the deferral period--which is continually extended by Canadian Blood Services to deny MSMs who have had sex with other men since 1977, and which now stands at 33 years--would have to be explained. "Evidence was lacking of the existence of real concerns that would make a deferral period of 33 years necessary in order to maintain the current level of safety," Aitken opined. "Certainly there was no such evidence supporting the annual increase in the length of the deferral period."

"So now we would look to Canadian Blood Services and say, 'There is no scientific justification, so change the length of time,' " said Egale Canada's Helen Kennedy. "What people don't seem to be getting here is members of the gay community get blood as well," Kennedy added. "So the safety of the blood supply is of paramount importance to all of us."

But the decision was embraced for matters of public relations by the Canadian Hemophilia Society, whose CEO, David Page, noted that even so long after the tainted blood crisis of the 1980s, "A decision here in favor of a rights issue over safety would have been very, very badly received by recipient groups." After all, noted Page, "It is the recipient of blood and blood products who bears 100 per cent of the risk and the donor actually bears none."