OTTAWA - Denying men who have sex with men the right to give the gift of life is "not in the same league" as asking the people who need it to accept riskier blood, a judge has ruled.

Judge Catherine Aitken ruled in favour Thursday for Canadian Blood Services against Kyle Freeman.

She upheld the ban on donations by men who've had a same-sex partner even once since 1977 that Freeman said violated his constitutional right to equal treatment regardless of sexual orientation.

She also found for CBS in its negligent misrepresentation suit against Freeman, 38, who lied about his sexual history when giving blood from 1990 to 2002, when his blood tested positive for syphilis.

Gay and bisexual men may feel "a loss of dignity, a feeling of marginalization, a sense of disappointment, and a sense of injustice," especially given their history of discrimination, Aitken wrote.

However that's not the same as asking the people who need blood to survive or thrive to accept lower standards when an adequate supply could be provided more safely.

"They also have a history of the system failing them," Aitken wrote. "And if the system fails them again, their lives may be on the line."

CBS and the Canadian Hemophilia Society applauded the conclusion there's no right to give blood and the policy discriminates not on the basis of sexual orientation but on the prevalence of HIV/AIDS and other infections among men who have sex with men.

"Every decision we make at CBS is premised on providing safe and secure supply to recipients," CEO Dr. Graham Sher said, who was asked about the tainted blood scandal of the 1980s.

"That has informed every decision and every policy we have ever made ensuring that safety."

The Canadian AIDS Society, which panned the ruling along with Egale Canada, called it "disturbing" that the court pitted safety against gay rights when the only strategies that work to fight HIV/AIDS are ones that respect human rights.

A society lawyer pointed to another one of the judge's conclusions - that she heard no concerns about new blood-borne infections justifying a 33-year ban that gets longer every year. A decade-long ban might well be enough.

"It's an argument we've been making for 10 years," Douglas Elliott said but CBS has been a "brick wall."

"The court has made it clear that it's unnecessarily broad for safety reasons and we're going to keep fighting for change."

megan.gillis@sunmedia.ca