Sunday, September 12, 2010

Judge Rules Canadian Blood Service Does Not Have to Accept Gay Blood

Out of the province of Ontario...this past Thursday Justice Catharine Aitkin ruled that men who have sex with men are ineligible to give blood in Canada. CTV Calgary reports...

Canadian Blood Services is legally allowed to ban men who have sex with men from donating blood, an Ontario court has found. Gay rights groups are furious with the decision.
In a ruling Thursday, the Ontario Superior Court dismissed a constitutional challenge from a man who tried to fight the policy. The court decided that the law does not give someone the right to donate blood. It also noted that the Charter of Rights does not apply to the blood agency's policies, because it is not a government entity.
The ruling stems from a case that began with Canadian Blood Services suing a gay man named Kyle Freeman, who lied about his sexual status when he donated blood several times between 1990 and 2002. Once the agency learned that Freeman had lied on his questionnaires, they sued.
Freeman argued he lied because the policy banning gay men from donating wasn't scientifically justified and violated his rights. He launched a counterclaim under the Charter.
But on Thursday, the court dismissed the challenge, finding Freeman liable for $10,000 for negligent misrepresentation.
The judge in the case, Justice Catherine Aitken, did note in her written decision that gay and bisexual men may feel "a loss of dignity, a feeling of marginalization, a sense of disappointment, and a sense of injustice" when denied the opportunity to give blood.
But she ruled that the impact of that injustice is not "in the same league" as a blood recipient being asked to accept lower safety standards.
Canadian Blood Services chief Graham Sher said "we are reassured that the court has confirmed that our policy, with respect to men who have sex with men, is not discriminatory."
He added: "blood donation is not a right, it's a privilege we try to extend to as many Canadians as possible."
I have been thinking about this over the past few days since the ruling and I have come to the following conclusion. Though the judge is correct in that giving blood is not a right, she fails to recognize that she is distinguishing between orientation and action. Yes you could say that if two men have sex that that is itself an action, but if you rationally think about it, all people have sex based on their orientation. Heterosexual men with women, homosexual men with men, and bisexual men with men and women. What we have to distinguish now is the level of sexual interaction - that is what I mean by choice.

Under the current system for example, you are allowed to give blood if you are a promiscuous heterosexual man, but once you have sex with a man, regardless if you have only had sex with that one man for ten years, you are not allowed to give blood. Thus the Canadian Blood Service is targeting one groups orientation instead of the sexual actions of individuals.

Now, because the ratio of HIV in gay men is larger than in heterosexual men, and gay sex is more prone to pass it, it would be safe to say that their should be different questions targeted towards gay men than heterosexual men. For example, in order to discern whether gay men could give blood it could be asked, "Have you been in a monogamous relationship (only one partner for all sexual contact) for more than 6 months?" This type of question would eliminate the "HIV window", since if you were infected then when they tested the blood it would show. Any heterosexual men who have had anal sex with women should also be asked this question.

Now, many gay men will object to the "different" treatment when it comes to questions regarding sexual practice, as they will say that that discriminates. Not really. For when you have a different sexual practice (anal vs. vaginal sex), there should be different questions asked. Each one has different risks associated with them, thus the basic questions cannot fully apply to all. Applying these "questions" would allow gay men to donate blood without being a risk to the blood supply, and at the same time not discriminating based upon orientation, but on actions.

What do you think would be an acceptable method for gay blood donations? I would be interested to hear your thoughts.

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