Katie Toth, Opinions Editor
On Sept. 9, Ontario Superior Court Justice Catherine Aitken ruled that men who’ve had sex with men are still not allowed to give blood. The reasons behind this ruling are so haphazard that some members of the queer community are hoping it will spark internal pressure from the Canadian Blood Services to create a less discriminatory policy.
The ruling was primarily based not on whether the policy was discriminatory, but on Section 32 of the Charter, which notes that its application only applies “to the Parliament and government of Canada in respect of all matters within the authority of Parliament … and to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.”
“The implication is that healthy blood should be turned away, not in the name of science but to allow homophobes to feel comfortable.”
The Charter doesn’t apply to private non-governmental organisations, she said.
Doug Elliott of the Canadian AIDS Society noted that this ruling was disconcerting. He describes it as a “road map” for the Canadian government to subvert Canadians’ Charter rights.
By the same logic, the Canadian Government might be able to contract out their dirty work privately, and ask security companies like Securitas to jail people without trial. (The Dalhousie Gazette, too, can finally realise its dream of instituting the No-Gingers hiring policy it has always dreamed of, without fear of being discriminatory.)
If organisations supported by the government are considered separate entities, then do our hospitals and schools have the right to discriminate as well?
Ultimately, however, details are details, and interpreting the law is meant to be based on factual analysis. Canadian Blood Services’ lack of legal obligation to the Charter is a legitimate reading of the law.
Unfair, however, was Aitken’s hurtful and damaging position later in her ruling, where she effectively allowed herself to be swallowed by a false dichotomy: Patient safety, or tolerance and compassion? Safe blood, or gay blood?
This isn’t a real issue.
Anal sex is the sex act which is considered high-risk for men who have sex with men, carrying with it a 33 year deferral period on their blood donation. The same activity, when performed by heterosexuals, requires only a 6 month deferral period.
If public safety requires deferrals for people engaging in higher-risk behaviours, those deferrals should be the same for everyone. And they should take into account the new technologies in Nucleic Acid Testing of blood for HIV/AIDS, which Health Canada says is nearly foolproof. This standard test, which screens all donations of blood in Canada, can detect HIV within 12 days of infection.
Aitken noted that there is not substantial scientific background for a 33 year deferral, effectively conceding that the rule was not necessary for public safety. “Evidence was lacking of the existence of real concerns that would make a deferral period of 33 years necessary in order to maintain the current level of safety,” said Aitken, according to the Ottawa Citizen. Aitken suggested that a deferral period of 10 years would be more reasonable.
Unfortunately, Aitken also allowed herself to be swallowed up by an old stereotype, writing that the policy “is based on health and safety considerations: namely the prevalence of HIV/AIDS … in the MSM population.” The prevalence which she’s talking about is an infection rate of about 6 per cent.
Aitken went on to worry about the “leap of faith” patients take in the blood system, where they often face “anxiety … about pathogens.” The implication?
That this anxiety was somehow the sole responsibility of men who’ve had sex with men. That the 94 per cent of gay men who don’t have HIV or AIDS shouldn’t be giving blood because they might contribute to someone else’s emotional discomfort. That blood shortages should continue, and healthy blood turned away, not in the name of science but for the sake of allowing homophobes to feel comfortable.
This was an immense disappointment. Until the assumption that every gay man is a self-hating, promiscuous, unethical slut stops being proliferated, it is the duty of our justice system to look past outdated ideas about queer culture and look directly upon facts.
Aitken didn’t do this. Her biased conclusion is a blow to the Canadian culture of democracy and human rights.
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