Canada: Critics of Gay Blood Donation Ban See "Glimmer of Hope" in Ruling Upholding Ban

Ontario Superior Court Justice Catherine Aitken on Thursday upheld a total ban on blood donations from any man who has ever had sex with a man since 1977. In dismissing a constitutional challenge to the policy, Aitken ruled that Canadian Blood Services (CBS) is not a government entity, so the Charter of Rights does not apply.

There is a "high relative prevalence" of HIV and other STD pathogens among men who have sex with men, and thus the policy is based on fact and not prejudice, Aitken wrote in the nearly 200-page judgment. Donating blood is not a right afforded by law, she said. Further, any impact from the ban felt by the MSM community is not "in the same league" as that of blood recipients asked to accept lower safety standards, Aitken wrote.

Critics of the ban saw hope in one of Aitken's findings, however. "Evidence was lacking of the existence of real concerns that would make a deferral period of 33 years necessary in order to maintain the current level of safety" if the charter applied, wrote Aitken. "Certainly there was no such evidence supporting the annual increase in the length of the deferral period."

Helen Kennedy of the gay-rights group Egale Canada called those few sentences a "glimmer of hope." "So now we would look to [CBS] and say, 'There is no scientific justification, so change the length of time,'" she said.

CBS CEO Dr. Graham Sher said the ruling upheld the validity of its screening processes. "This and all our policies are based on sound scientific evidence, sound facts about risks and are intended to reduce or pre-empt the introduction of risks to recipients of blood products," he said.

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