Ontario Superior Court today found that Canadian Blood Services is legally allowed to ban men who have sex with other men from giving blood.
In dismissing a constitutional challenge, the court ruled that Canadian Blood Services is not a government entity, so the charter does not apply to its policies.
The ruling is interesting in that, by finding the charter doesn't apply, the Court was able to avoid deciding whether the restriction was reasonable in a constitutional sense.
12 comments:
I don't think this is a Charter case, but it must violate Human Rights Codes. Right now if you've ever had sex with a man since 1977 you're banned from giving blood. That's just stupid. If you had sex with a man once in 1977 and you don't have HIV from that incident yet then you're not going to. Typically it would be detectable within three months, though I understand they say six to 12 months to be sure. So base it on the science: if you've had sex with a man in the last 12 months you can't give blood because there's a possibility we won't detect HIV that is there. But there's no possibility that they won't detect HIV after a waiting period of 33 years! CBS is putting people lives at risk because we nearly always have a shortage of blood and they have a policy that isn't based on any science. I sure hope this decision gets appealed.
@Anonymous
Technically speaking, gay men are not banned from giving blood. They can donate it all they like. Canadian Blood Services simply declines to use the blood and discards it. That's the same with me. They won't use my blood because I've been to the UK a fair bit and they're concerned about BSE.
But to address your larger point, it's not discrimination against gay men. It's discrimination against blood that is statistically more likely to be contaminated with a sexually transmitted infection.
But there's no possibility that they won't detect HIV after a waiting period of 33 years!
That simply isn't true. Tests are not perfect and eliminating blood even before testing on the basis of statistical risk is believed by health professionals to improve the safety of the blood supply.
Canadian Blood Services had sued Kyle Freeman, a gay man who lied when giving blood, and the court has now found him liable for $10,000 for negligent misrepresentation.
Mr. Freeman, who had syphilis when he donated blood, had argued he lied because the policy wasn't scientifically justified and violated his rights.
What, the right to infect people with syphilis?
Good gravy..........
http://www.theglobeandmail.com/news/national/court-rejects-challenge-to-canadian-blood-services-ban-on-donations-from-gay-men/article1701005/
Actually, if we only want to talk about science, a current promiscuous straight male has a higher chance of having unsafe blood than a male who had sex with a male 33 years ago and since has been in a monogamous heterosexual relationship. Thus, the current policy is not based on science.
The safety of the bloood system is far more important than someone's hurt feelings. I makes me sad that this person couldn't see that.
@Anonymous
With regards to promiscuous heterosexuals, you'd have a good point there if they didn't also ask questions about sexual history and other risk factors. But they DO ask those questions.
They don't take the "straight" blood and throw out the "gay" blood. This simply isn't anti-gay discrimination.
You seem to feel that as long as they ask the question then everyone is treated equally. Having sex with a man within the last 33 years means you cannot donate blood. With the other questions there is a balance at play considering all the variables. But somehow you don't seem to understand that. Wow. They ask all sorts of questions, that totally misses the point.
Whether you gay or straight what they should be doing is assessing your risk. But they don't with gay men. If you've had sex with a man in the last 33 years you're out, even though the science says there is very little risk for anyone who hasn't had sex with a man in the last 5 years. This should be based on science not some overly broad ban on gays.
@Anonymous
It's not a ban on gays. You'll notice there's no problem with female on female sex. Only with male on male sex which radically increases the risk of an STI. As tests aren't perfect, a successful challenge here would have meant increased risk for people dependent on blood products to live. You're making the assumption that they don't screen for risky heterosexual behaviours in donors and you have no basis for that assumption.
Blood donation exists for the benefit of the blood recipient, not the donor.
My blood was rejected once because I was at the dentist the day before.Teeth cleaning was a no-no.
There are all sorts of reasons for rejecting blood. High risk sexual behavior is another.
Safe blood is paramount to all other considerations. It sure as hell would be if any of you needed the blood. This is not a game.
We can start taking it from US prisoners again, just like when Chretien was runninfg it. Sure, a few people got Hep-C but no one was found guilty.
"radically increases", now that's proof you don't know the science. I'm all for this being based on scientific evidence of risk. 33 years isn't based on the science, the science says 5 years.
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