September 10, 2010
In a 187-page decision released Thursday, Justice Catherine Aitken of the Superior Court of Justice upheld the Canadian Blood Services' (CBS) ban on donations by men who have sex with men (MSM). Giving blood is not a civil right on par with voting, marrying or holding public office, Aitken said.
In Canada, any man who has had sex with a male partner since 1977 is ineligible for blood donation.
Aitken pointed to epidemiological evidence showing that HIV and other STDs are more prevalent in the blood of MSM than heterosexuals. Though concerns about the validity of the scientific research have been raised, CBS has a right to err on the side of caution, the judge said.
"It would be irresponsible of [CBS] as a blood operator to wait until there is clear scientific evidence regarding a risk before taking reasonable steps to avoid it," Aitken said.
Aitken acknowledged that many MSM may feel a sense of injustice over being denied the opportunity to donate blood, a reaction that could be "all the stronger and more poignant" given the history of discrimination against the MSM community. "That impact, however, 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 make life livable and who is asked to accept lower safety standards," she wrote.
Aitken awarded $10,000 (US $9,648) in damages to CBS after finding that a gay man, Kyle Freeman, committed negligent misrepresentation when he donated blood as many as 18 times between 1990 and 2002, falsely denying he had ever had sex with another man. In 2002, his donation was discarded after it tested positive for syphilis. In an anonymous e-mail to CBS, which the blood service obtained a court order to trace, Freeman admitted his deception and voiced his objections to the ban. Aitken dismissed Freeman's counterclaim of equality rights against CBS and the federal attorney general.