By Hilary Beaumont, Features Editor
In Ross’ mailbox sat a new, white, eight-and-a-half-by-11 envelope– the kind designed for unfolded intra-office letters. There was no return address. No other mail in his box either. He tore it open and pulled out a poster advertising an upcoming blood donor clinic. Shocked and disgusted, he scanned the hallway. No one there. He searched the 40 other wooden mail slots for blank white envelopes. None were there.
Ross had received other offensive messages in the mail– once at work– during the years he fought publicly for the equal rights of same-sex couples and their families. Previous messages had typically threatened him, but this envelope held nothing but the poster. He concluded someone had sent it to taunt him: “Nah-nah nah nah-nah, you can’t give blood.”
He slid the poster back into the envelope and placed it back in the box where he’s collected mail for 23 years.
“The gay cancer”
Ross Boutilier is an openly gay and happily married 54-year-old geologist who works for Natural Resources Canada in Dartmouth, Nova Scotia. He and his husband, Brian Mombourquette, are banned for life from donating blood.
Since 1985 the Canadian Blood Service (CBS) has maintained a ban on blood from “MSM” donors (males who have sex with other males), so phrased to exclude men based on behaviour rather than sexual identity. A man who has had sex with another man since 1977, even once, cannot donate blood because the CBS claims these men are at a higher risk of contracting HIV.
Statistically, they’re right; several studies from the U.S. and Canada confirm MSM donors are a higher-risk group, and though the blood service tests every donation, they say HIV tests are never 100 per cent sure. Based on the same argument, Health Canada does not accept MSM organ or sperm donations.
As a monogamous, HIV-negative couple, Ross and Brian carry virtually no risk of transmitting HIV through blood donation. They find the CBS policy discriminatory toward them because it treats them differently from heterosexuals and does not take their commitment to monogamy into consideration. Ross says the ban presumes a few things about gay and bi men: That they are sexually promiscuous, they do not use protection, and they all have HIV or AIDS.
A court decision in early September upheld the ban. Superior Court Justice Catherine Aitken found the Canadian Charter of Rights and Freedoms does not apply to the CBS since it’s not a “government actor” and does not implement any specific government policies. The Charter — she wrote in her 188-page ruling — does not protect or promise a right to give blood.
Today’s controversy began with an urgent decision 25 years ago. In charge of Canadian and American blood donations in the 1980s, the Red Cross did not properly screen donors, and when the HIV/AIDS epidemic struck North America, thousands of blood recipients were infected with the virus, and Hepatitis C. A wave of lawsuits hit the service. The Red Cross reacted in 1985 by banning blood from MSM donors in the U.S. and Canada.
Back then HIV was “the gay plague,” “the gay cancer”. Those who contracted it died within two years. Worse still, Brian says, gay men were presumed to be begging for HIV; they deserved the virus while women, children, straight people and hemophiliacs were simply victims.
In 1998 as a result of the scandal and to avoid political influence, the CBS was formed as a separate and arms-length organization from Health Canada.
Though merited at the time, considering the scientific mystery shrouding the virus, Justice Aitken concluded last month that the lifetime ban “goes well beyond what current science suggests is necessary to protect public health.” She suggested the ban be reduced to a deferral period of 10 years.
Two decades of benefit concerts and runs for the cure later, science has advanced. Over the years the Canadian Blood Service has chipped away at the list of banned donors, leaving a shorter list of those at high risk of carrying HIV or AIDS. A heterosexual woman, for example, when asked if she has had sex with an MSM male—a question to which many people would not know the answer—is given the benefit of the doubt according to CBS policy.
However, the CBS maintains that screening MSM donors based on behavior would not be as effective as singling them out as a group with statistically-proven higher risk. In court the blood service argued they could not reasonably screen all potential donors for such critical considerations as relationship status, use of protection, or HIV-negative test results.
17 years of monogamy
It took a couple days for Ross to simmer down after receiving the poster. He found out the sender innocently passed it along so he could tack it up. Even so, he says it felt like a punch in the gut.
Though LGBTQ rights have come a long way, Ross says gay men are still subjected to an undercurrent of meanness. In this case, the blood donor clinic appeared to be something his employer fully endorsed—an employer Ross had previously taken to court for the same sort of discrimination.
His quick anger toward the envelope sender comes from years of battling inequality—namely a legal fight to marry the love of his life.
Brian and Ross solidified their commitment to one another during what they call a “blanket ceremony:” in their bed, 17-and-a-half years ago. Six months earlier they agreed to be sexually monogamous. Back in 1993, HIV tests were said to be certain after six months of sexual exclusivity. Both men tested negative. They have been sexually and emotionally monogamous ever since.
The couple celebrated their exclusivity again in 1994. Ross and Brian wore their most colourful shirts that July afternoon – Ross in turquoise, mustard and red patchwork, and Brian in a similar palette but with wide stripes running down his torso. They faced each other on the pew of the Safe Harbour Metropolitan Community Church before 120 family members and friends – including me (I was 12)– and read their vows: “I promise to be monogamous because it nurtures the primacy of our relationship, sexually, spiritually and emotionally.”
Same-sex marriage was not yet legal in Canada. Ross and Brian called it their ‘celebration of commitment’.
After the ceremony, the beaming couple posed for photo after photo. Guests gorged themselves on a potluck buffet of strawberry shortcake, cheese with crackers, and ice cream cake to defy the mid-summer heat.
Ross chuckles as he recalls the reception: “They ate everything. All I got was a brownie.”
All that really mattered was the massive support from their social circles.
On June 4, 2001, Ross and Brian filed for a registered domestic partnership – a legal agreement one step from marriage. Finally, on December 24, 2004, the same pastor from their commitment celebration legally married Ross and Brian in their living room on Preston Street in Halifax.
They struggled to ‘tie the knot’ because they wanted to be equal to each other, and equal to opposite-sex couples. Ross and Brian see the ban on MSM blood as a last legal hurdle—one they are both surprised still exists. As a fully monogamous HIV-negative couple, their blood, organs, and sperm are healthy and fit for anyone in need.
Pre-screen lie
If you walk into the blood donor clinic where the tip of Gottingen Street meets the Citadel, you’ll be asked to tick off a lengthy list of yes/no questions before you can give blood. By casting a wide net, the questionnaire aims to determine an honest person’s risk of carrying any number of viruses—malaria from that Egypt trip, HIV from that prison tattoo, syphilis contracted from paying for sex.
A nurse will then sit down with you in private to determine the blood service’s correct policy—deferral, acceptance or lifelong ban—based on a massive binder weighing as much as an atlas. If the nurse gives you the all-clear, he will leave the room so you can privately pick one of two stickers—one that says, yes, use my blood, and the other that says no, don’t use my blood. This final measure is meant to provide “risky” donors with a dignified way to have their blood taken but not used.
In June 2002, Kyle Freeman sent an anonymous email to the CBS admitting he lied in the pre-screening tests and gave blood regularly as a sexually-active gay man. In the email he condemned the policy arguing that it discriminated against him.
Claiming their screening process was “purposefully compromised” the blood service went to court to find out Freeman’s identity from his Internet service provider. They claimed he put their patients at risk.
Freeman did not have HIV or AIDS, though one of his blood donations did test positive for Syphilis. He said he protected himself and blood recipients by using condoms during sex. He waited six months before donating blood if he had an experience that put him at risk of contracting the virus, he said, and got tested. Current HIV tests detect the virus after three weeks; he said adhered to the outdated precaution to make a point.
The CBS sued Freeman in 2002 for negligent misrepresentation. Freeman filed a counter-suit against the CBS and Health Canada saying he experienced “humiliation, degradation and marginalization” from the MSM screening question. He claimed the lifetime ban on blood from gay men violated his Charter right to not be discriminated against based on his sexuality.
“It’s 2010,” he told the Globe and Mail. “It’s so saddening to see our government so hell-bent on discriminating against people.”
“From the perspective of the law, he committed fraud, so he is subject to the penalties of the law,” Brian says. “I’m not convinced that’s an appropriate form of protest.”
In late September Justice Aitken held Freeman liable for $10,000 in damages that the blood service had spent to trace the donations he made over a 12-year period.
“The Charter does not (and never was intended to) govern ‘private’ or non-governmental action,” says Sean Foreman, a partner at Wickwire Holm in Halifax, in an email. “However, this does not mean that CBS can simply ‘discriminate’ against certain groups in all matters.”
Human rights codes and legislation still apply to the CBS’s private actions in terms of employment or hiring, he says, though they may not apply in accepting blood.
“To say that discrimination is justified based upon some corporate right, that they are not constrained by the laws of the land — no corporation, no bank would ever make such an assertion,” Ross says. “So when you see this hypocrisy on the hands of an organization that has a public trust and says ‘we don’t have to follow the rules,’ it’s just appalling.”
While Justice Aitken acknowledged there is no scientific basis for continuing the lifelong ban on MSM donors, Foreman said he didn’t think she achieved a fair balance between protecting public health and equal rights for gay men.
“Regrettably, she was not willing to move beyond a restrictive test and application of the Charter and to move beyond the safety arguments put forth as a red herring to disguise old stereotypes and assumptions on the sexual practices and health risks of gay men,” says Foreman, who is also a past-chair of the Nova Scotia Rainbow Action Project (NSRAP) and the Canadian Bar Association’s Sexual Orientation and Gender Identity Conference (SOGIC).
“In her ruling Justice Aitken specified that there is ‘no scientific justification for the 33-year deferral of men who have had sex with men.’ This statement reinforces the Canadian Federation of Student/Egale/Canadian AIDS Society call for the deferral policy to be removed and replaced with a policy that identifies high-risk behaviours. The shift to a behaviour-based question would, according to top researchers identified in the ruling, lead to a safer blood supply.”
Logical decision, emotional reaction
In her ruling Justice Aitken described blood donation as a gift that may be freely accepted or rejected by CBS.
Former Dalhousie student Nick Shaw says it hurts when a gift is rejected on the basis of your sexuality. For him the MSM policy confirms at a deeper level that society sees something wrong with him because he is gay.
“You tell yourself and people all around you tell you that who you are is wrong, that you’re not good enough, and there’s something wrong with you,” he says. “That’s a fundamental fear that a lot of people carry, especially homosexuals.”
But you won’t see Shaw protesting the ban. Though it’s difficult to accept the judge’s ruling, he believes her decision was logical; statistically his group carries a higher risk of transmitting HIV, and false negatives aren’t unheard of during testing.
“A lot of debates can be marred in emotional responses to something, and sometimes it’s incompatible with what seems like a logical decision.”
“To be told by a large organization that there is something wrong with you, it pushes on a sore spot in a lot of homosexual men, as it would with anyone,” he says. “They’re reminded that the thing they’re fighting and struggling with the most is acceptance of themselves, and they’re told that (being gay) is not acceptable. But that’s not something I want to mix up with logic. That’s something I have to deal with myself and it’s not necessarily the place of the blood service to deal with the emotional battle a lot of homosexual men are going through.”
“You take a disappointment like that and you put it in a box,” Ross says as he and Brian sip twin black currant iced teas at Coburg Cafe. They’re content the judge said there was no scientific basis for the ban, though they disagree with her interpretation of the Charter.
It’s a familiar feeling. Ross, who’s had the legal document hanging on his wall at work since before he married Brian, says: “There’s no Charter right to be anything other than treated the same.”
Full disclosure: Ross and Brian are friends of the author’s family.
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