OTTAWA - Canadian Blood Services’ ban on donations by men who have had sex with a man even once since 1977 violates gay men’s rights because it deems them all threats to the blood system, a lawyer for a gay man who’s suing to reverse the policy argued Tuesday.
“It doesn’t matter whether you engage in anal sex at all, it doesn’t matter if you use a condom, it doesn’t even matter if you’re in a long-term monogamous relationship or if you’re legally married as a gay man,” Patricia LeFebour said.
“It doesn’t matter. Your blood isn’t wanted.”
Kyle Freeman is asking Superior Court Justice Catherine Aitken to strike down the CBS ban on donations by men who’ve had sex with another man even once since 1977.
He countersued when CBS sued him after tracing anonymous e-mails in which he admitted to lying about his sexual history in order to give blood.
The 10-week trial is now in closing arguments.
LeFebour argued the court should strike down the so-called MSM question and lifetime ban. Instead, stakeholders should agree on a scientifically-justifiable period of deferral — such as the 12 months imposed by Japan, Australia and South Africa.
Instead of one question, a series of questions about sexual practices could judge individual risk.
An estimated 15-20% of men who have sex with men engage in unprotected anal sex, LeFebour said.
But the majority practice safer sex and are at “negligible or no risk” of getting HIV or other infections, she said.
“By setting up the start date of 1977, that question captures all gay men — regardless of activity,” LeFebour said. “Not all gay men engage in high-risk activities.”
Freeman became a blood donor before he was even sexually active because he was moved by the call for donations and wanted to help.
He claims he was always tested for HIV before his 18 donations between 1990 and 2002 and didn’t donate during a three-year period when he was having casual sex.
Yet CBS is trying to “make an example” of her client after he’d sent them e-mails trying to start a “meaningful dialogue” about the ban was justified, LeFebour argued.
“Mr. Freeman requests simply that the court follow the path of previous decisions on sexual orientation and move to break down the insidious stereotype that all gay men are promiscuous carriers of disease,” he told the judge.
megan.gillis@sunmedia.ca
