Homophobia, Blood Donation, and the Canadian Charter of Rights and Freedoms

Earlier this week Madam Justice Catherine Aitkin of the Ontario Superior Court ruled in favour of Canadian Blood Services (CBS) in their suit again Torontonian Kyle Freeman.

In 2002 Freeman informed CBS via anonymous email that he was a gay man who had donated blood numerous times between 1990 and 2002. The organization traced Freeman's identity and sued him for lying on question 19 of the blood donor questionnaire, which asks, "Male donors: Have you had sex with a man, even one time, since 1977?" Freeman countersued, arguing that the question violates his right not to be discriminated based on his sexual orientation as guaranteed under section 15 of the Canadian Charter of Rights and Freedoms.

Question 19 is meant to identify men who have sex with men (MSM), as many reports indicate an unusually high prevalence of HIV/AIDS among MSM. In Canada CBS indefinitely defers (read: permanently restricts) the donation of blood from men who have had sex with men, even once, since 1977. In his countersuit Freeman also sought to have the ban struck down.

The repercussions of this decision are extensive, as it both sets one bad precedent and maintains another. Aitkin's ruling states that the Charter does not apply to CBS because of its bureaucratic structure and the organization's distance/independence from government. Many fear that this will allow the government to ignore the Charter altogether by creating "independent" bodies to carry out governmental tasks. One Globe and Mail reader commented that the Eldridge case sets a seemingly relevant precedent with regards to the Charter most definitely applying to such organizations, though I don't see any evidence this was considered by Aitkin. It's pretty terrifying to imagine any government operating outside the Charter, but especially so given our current political climate. I would hope to see this ruling get overturned by the Supreme Court, though who knows if it'll get that high or go that way.

Also disturbing is the fact that MSM will continue to be openly discriminated against under this ruling. To my mind this is a significant and easily avoidable failure to promote equality and quash persistant homophobic stereotypes. Admittedly I don't know much/anything about the science behind all this, but it seems obvious that screenings should seek to identify the degree and safety of potential donors' sexual activity. For example, Italy and Spain screen for the level of safety involved in all sexual activity. Similarly Australia, Japan, and Sweden screen based on the number of partners one has had in the last year. These seem like relevant questions to ask in order to identify high risk donors, not questions as to the nature of the sex one is having.

AIDS is not a "gay disease" or some ludicrous punishment for "amoral" activities, it can be and is transmitted among heterosexuals who don't use caution and/or protection. If a man has only been having sex with one male partner for a significant period of time then how is he a high risk? He poses no more threat to the blood supply than any man who has only had sex with one woman for a significant period of time. To discriminate against MSM is archaic, ineffective, and prejudicial, and I am sorry to see it authorized in this fashion in Canada.