Despite an ongoing shortage of donations men who have had sex with men are still prohibited from giving blood in Canada. But two lawsuits currently working their way through the Ontario and Quebec courts may change that.
Adrian Lomaga filed suit against Hema Quebec — which controls blood donations in that province — in 2005 when he was refused the right to donate blood because he is gay. Canada prohibits any man who has had sex with another man even once since 1977 from donating blood.
Lomaga says an actual trial in the Quebec Superior Court might not begin for another couple of years. But he says he’s determined to continue.
“I believe that I have a case and that I am right,” he says. “What’s encouraged me is the incredible support I’ve gotten from the gay community and even the straight community. I’ve gotten letters of support from as far away as the British Virgin Islands.”
In Ontario the lawyer for Kyle Freeman expects the Ontario Superior Court trial in his suit against Canadian Blood Services (CBS) to begin sometime next year. CBS — which controls blood donations everywhere except Quebec — filed a claim for damages of $100,000 against Freeman in 2002 after he lied about his sexual history and donated blood.
Freeman sent an anonymous email to CBS and Canadian media after his donation.
“I am a gay man and have been involved in a long-term committed relationship,” the email stated. “Both my partner and myself have been tested for the HIV virus and are both negative and intend to stay that way. We are both very honest people and are both blood donors.”
CBS tracked him down through his internet service provider and filed its claim. Freeman filed a counterclaim on the grounds that his Charter rights were violated by the ban. The two claims are being heard as one case.
His lawyer, Patricia LeFebour of Toronto firm Rochon Genova, says she’s heartened by other countries dropping their lifetime bans on gay men.
“Just over the past number of months, to see the number of countries that are, if not changing their policies then thinking about it, is encouraging,” she says.
But LeFebour will not predict the outcome of the case.
“It really, truly is anyone’s guess,” she says.
Both cases are currently in a pretrial phase, conducting depositions and working on expert reports. Lomaga says Mark Wainberg, the director of the McGill AIDS Centre in Montreal, is writing a report for his case.
Wainberg says his report will focus on how the advances in HIV testing have made a lifetime ban unnecessary. But he says he expects Hema Quebec to argue about future epidemics.
“My general approach is that the science of HIV detection has moved on,” he says. “The argument they will raise is, ‘We’re not worried about HIV at all, we’re worried about the horrible epidemic that will come next.’ Their argument would be that gay men are more vulnerable to that because in general they’re more promiscuous than the general population.”
Wainberg hopes the court will recognize the merit of a behaviour-based approach to excluding donors.
“I would argue strenuously that even if these arguments do make sense to a point, we’re excluding all gay men regardless of whether they’ve been in a single, faithful relationship for years and have tested negative or they’re someone who might have experimented just once 30 years ago,” he says.
But Wainberg is unsure how the court will see the argument.
“It’s apparent to me that this is not going to be a slam-dunk,” he says.
Egale Canada, which is an intervener in the Freeman case, has commissioned a report from Toronto psychologist Rosemary Barnes on how the blood ban stigmatizes gay men and feeds into a pattern of discrimination.
“The ban really stigmatizes us with the straight community,” says Hilary Cook, the chair of Egale’s legal issues committee. “We want to show the history of discrimination, the impact of discrimination, the link with HIV and how that’s been used to restigmatize the community.”
Egale’s intervention in the Freeman case is funded by the Court Challenges Program (CCP), established to fund cases brought by groups claiming violation of their charter rights. The program was eliminated by the Harper Tories in 2006 but funding that was promised before the cancellation is still being provided.
CCP is also funding Freeman’s legal representation, says LeFebour.
Lomaga is receiving pro bono representation from Montreal lawyer Julius Grey. Egale has agreed to cover the costs of hiring stenographers for depositions and photocopying and other expenses. He estimates those costs will reach about $2,000.
Neither CBS nor Hema Quebec would comment.