Canadian Blood Services defends charter rights claim on MSM policy
Summary
On September 28, 2009, the trial between Canadian Blood Services and Kyle Freeman began in the Superior Court of Ontario in Ottawa. The Court will determine whether Mr. Freeman is liable for his misrepresentations on his sexual history, as well as whether the MSM (men having sex with men) deferral policy is discriminatory under the Charter of Rights and Freedoms.
Background
Through an anonymous e-mail he sent to Canadian Blood Services (CBS) in June 2002, Kyle Freeman stated his disagreement with the policy that excludes MSM from giving blood. He also identified himself as a sexually active gay man who had provided false information during the donor screening process and had donated blood on many occasions.
It is critical to patient and donor safety that potential donors are truthful in their responses on the questionnaire. When the integrity of the screening system is purposely compromised, CBS has no option but to take action. So, CBS went to court to obtain his identity from the internet service provider so that his donations could be traced, and with that information risks to the blood system were mitigated. However, Mr. Freeman counter-sued Canadian Blood Services and the Attorney General of Canada (on behalf of Health Canada) for discrimination, seeking damages and a declaration that the MSM policy ought to be struck.
There are many individuals and groups, for various reasons, who are not eligible to give blood – all based on behaviours and circumstances known to increase risk. For example, people who come from countries with a high level of HIV in the population, and intravenous drug users are also indefinitely deferred from giving blood, as are those who have spent more than three months in the UK or France between 1980 and 1996, due to the increased risk of potential exposure to vCJD (the human form of mad cow disease).
However, the policy excluding MSM is the subject of debate between the LGBTTQ (lesbian, gay, bisexual, transsexual, two-spirited, and queer) communities, who view it as a discriminatory policy and patient groups that depend on blood products, and who feel it is a critical safety measure. The court will provide its opinion on this debated policy when it rules on this case in 2010.
Meanwhile, Canadian Blood Services will continue its efforts with the LGBTTQ working group that launched in September 2008. Made up of LGBTTQ representatives from across the country, patient groups, and CBS staff, this working group is focused on fostering better understanding of the MSM policy, mitigating the negative impact of the policy on certain groups, and promoting the research agenda to identify other ways of screening for high risk behaviours.