As a fortunate gay man living in 21st century Canada, there’s very little I can’t do. I declare my sexuality without fear of arrest and imprisonment, I can be a teacher, run for office and marry my partner. There are many neighbourhoods in Toronto where I even feel comfortable walking hand in hand with my boyfriend. That is, if I had one…
But I cannot give blood, because I’ve been with men.
Justice Catherine Aitken of Ontario’s Superior Court of Justice has upheld the ban on men who have sex with men from donating blood, which has been on the books since 1977, citing the fact that HIV and other sexually-transmitted pathogens are more prevalent in the blood of gay and bisexual men than in that of heterosexuals. She acknowledged that gay and bisexual men may feel discriminated against, but “the impact is not in the same league as the impact on a blood recipient who has to use blood or blood products in order to survive or to make life livable and who is asked to accept lower safety standards.”
In addition, Thursday’s ruling ordered Kyle Freeman, who donated blood numerous times in the 1990’s but who denied having sex with men, to pay $10,000 in damages to Canadian Blood Services. He had been quietly flaunting the rule, but in 2002 sent an anonymous email to the blood agency objecting to the policy as a gay man who had lied repeatedly in his screening. The agency obtained a court order to trace his identity with the help of the Internet service provider.
Reading Justice Aitken’s ruling, one could almost believe that blood went directly from the donor’s vein to the patient, but, of course, donations are always tested for hep B and C, HIV 1 and 2, human T-cell lymphotropic virus, West Nile and Chagas disease, which is caused by exposure to bugs in central America. Blood agencies have justification for erring on the side of caution: between 1980 and 1990, about 32,000 Canadians were infected with HIV and hep C with tainted blood, a disaster which nobody wants repeated. But if the blood is going to be tested anyways, what is the justification for banning some people from donating? I was going to suggest double or triple-checking blood from men who sleep with men, but that is ludicrous. If there’s any doubt about it, throw it out, but don’t ban the donator because of what he has admitted about his sex life.
I thought we had a Charter of Rights and Freedoms for that kind of thing. Turns out, not so much.
Justice Aitken said that Freeman’s equality rights were not engaged because the Charter only governs dealings between individuals and governments, and, although Canadian Blood Services was created by the different levels of government and health ministers, it is considered an independent corporation. Furthermore, the Justice claimed that Freeman’s rights were not infringed upon because the act of donating blood is not considered a defining element of Canadian identity.
Justice Aitken: “The opportunity to give blood cannot be considered in the same league as the right to marry, the right to receive spousal benefits, the right to earn a living and the right to participate fully in life at public school—all rights for which homosexuals have successfully mounted equality case in Canadian courts.”
This element of the case is disturbing for activists and lawyers and goes beyond simply gay rights. “That’s a dangerous decision,” Doug Elliot, a lawyer representing the Canadian AIDS Society, said. “Governments are privatizing their activities all the time. If they can escape Charter scrutiny by setting up a corporation to carry out whatever program it is they’re concerned about… it will be an easy way for them to insulate themselves.”
In The Globe and Mail, Elliot added that blood donations are decreasing on university campuses and that this issue may be souring the younger generation against Canadian Blood Services.
“What is really going on is that gay men are donating blood anyway. CBS is not doing anything aggressive to investigate this because they know that the question is stupid. They are essentially encouraging people to ignore a question that they don’t respect and to do their own self-assessment. That is a very dangerous proposition.”
Options are to lie, or give up trying to help people, Freeman’s only motivation for donating.
Ironically, on the same day in the United States a federal judge ruled that the military’s “don’t ask, don’t tell” policy against gay people in the armed service is unconstitional. The judge said that the policy does not increase troops’ safety (the traditional justification) and has a detrimental effect on the military.
I wish Canadian Blood Services would adopt a policy of “don’t lie, don’t discriminate”.
We all, from blood recipients who shouldn’t feel safer just because CBS is cutting down their load to men who have sex with men and have rights guaranteed under the Charter, deserve better.