Canada: Ban on Gay Blood Donors Is Unconstitutional, Man Argues in Counter-Suit

A man who lied about having sex with men so he could donate his blood had syphilis, an attorney representing the Canadian Blood Services told an Ontario Superior Court judge Monday. CBS is suing Kyle Freeman for lying during the donor screening process and donating blood 18 times.

Freeman is counter-suing CBS, saying the lifetime ban on blood donation by any male prospective donor who has ever had sex with a man since 1977 is unconstitutional. Freeman is asking Justice Catherine Aitken to strike down the agency's lifetime ban in favor of a behavioral risk assessment that would not disqualify all gay men.

"When Mr. Freeman donated blood in June of 2002, that blood tested positive for syphilis," CBS lawyer Sally Gomery told the court. "Mr. Freeman was tested a month before, he didn't think he had syphilis but he did."

Though no one was hurt by Freeman's actions, "self-screening" is dangerous, Gomery said. "It's effectively the approach that the Canadian Red Cross Society used in the early days of the HIV outbreak. This approach resulted in thousands of Canadian blood recipients being infected with HIV and hepatitis C."

"Scientifically, it doesn't make any sense," Freeman said of the syphilis test result. "I was tested before I donated and there was no sexual contact."
"This case is not about eliminating safety for inclusivity," said Patricia LeFebour, Freeman's attorney. "The issue is whether the CBS blood donor questionnaire should screen risk behaviors rather than targeting a group protected by the Charter."

Tim Morgan of the Canadian Hemophilia Society testified that the court should view the decision through the eyes of blood recipients. Blood donors do not have any risk, in contrast to recipients, he noted. "It is their lives that will be impacted if anything goes wrong," Morgan said.

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