Groups representing homosexuals, students and people with HIV are vowing to continue fighting a Superior Court judge’s ruling that Canadian Blood Services can refuse donations from men who have sex with men.
In dismissing a constitutional challenge, an Ontario Superior Court judge wrote that Canadian Blood Services, a private, not-for-profit charitable organization, is not a government body and its policies are therefore not governed by the Charter of Rights and Freedoms.
“That’s a dangerous decision. Governments are privatizing their activities all the time. If they can escape Charter scrutiny by setting up a corporation to carry out whatever program it is they’re concerned about… it will be an easy way (for governments) to insulate themselves,’’ said Doug Elliott, a lawyer who represented the Canadian AIDS Society in the case.
The judge also found the challenge would not have succeeded even if the policies were subject to the Charter because giving blood is not a defining element of Canadian identity.
Rather than focusing on sex between men, Canadian Blood Services should be asking potential donors—regardless of orientation —whether they’ve engaged in unprotected sex, says gay rights group Egale Canada.
Calling the organization’s blood services questionnaire and policies “discriminatory,’’ Egale spokesperson Helen Kennedy said that while some people in the gay community would be high-risk blood donors, “you have to also acknowledge those who aren’t.’’
Brent Farrington, a spokesperson for the Canadian Federation of Students, echoed the need for a questionnaire based on unprotected sex. About 15 to 18 per cent of blood in Canada is collected on university campuses.
“The question should ask if you’ve engaged in unprotected sex, and how many sexual partners an individual has had,’’ Farrington said, arguing that research is beginning to show these types of questions would improve the safety and security of the blood supply.
But Dr. Dana Devine, vice president of medical, scientific and research affairs for Canadian Blood Services, says details about unprotected sex can be dubious because condom misuse and breakage rates are thought to be between five and 20 per cent.
“Just because you used (a condom) doesn’t necessarily ensure that the practice was therefore safe relative to not using one. It may reduce the risk somewhat, but doesn’t get rid of it entirely. That’s one reason we don’t ask questions of that detail,’’ Devine said.