In the next few weeks, the Ontario Superior Court will decide on a case between Canadian Blood Services (CBS) and a Toronto gay man who was sued for lying about his sexuality to give blood.
While the Superior Court heard closing arguments in January, the case had been percolating since 2002. It has sparked national debate, from queers and non-queers alike, about whether gay men should be able to give blood.
It all started in 2002 when Kyle Freeman, now 37, wrote an anonymous email to CBS and Canadian media:
“I am a gay man and have been involved in a long-term committed relationship. 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.”
Little did Freeman know the blood bank’s investigators would be able to track him down by his IP address. The privately run not-for-profit served Freeman with a lawsuit, seeking $100,000 in damages and accusing him of being negligent while filling out the screening form. Freeman’s countersuit clocks in at $250,000, claiming discrimination based on sexual orientation under the Charter.
Freeman donated blood 18 times between 1990 and 1999, when he was excluded from giving blood for life after testing positive for syphilis. But the lawsuit focuses on four donations between 1998 and 2002.
Last fall, Xtra spoke with Freeman. He expressed regrets about the inflammatory nature of the email he sent to CBS and the media; however, he maintained he did not regret donating blood.
“When people came to my door to serve me with a subpoena, they didn’t know who to ask for. It was originally John Doe v Canadian Blood Services. A friend told me I should’ve lied and said someone hacked into my internet account, but I wasn’t going to lie. I wasn’t going to hide,” says Freeman.
Although living a relatively vanilla lifestyle, Freeman has always maintained he and Vince Freeman, his husband of nearly a decade, are in an open relationship. He feels the MSM blood donation deferral introduced in 1983 should be based on today’s science.
“I think it’s less about what you do [than] how you do it. You can have just one sex partner and get HIV. Or you can have multiple partners and be safe,” says Freeman.
Freeman’s sentiments have echoed across the country. Lawyer Doug Elliott represented the Canadian AIDS Society’s interest in the Freeman v CBS case. He says the real issue is whether to make the CBS’s question “Have you have had sex with a man, even once, since 1977?” less restrictive.
“HIV is more common among gay men than straight people, so the risks are somewhat higher having sex within our community. So some distinctions are reasonable. But the current lifetime ban, asking you if you have had sex with a man, even once, since 1977 is absurd,” says Elliott.
Elliott says unless CBS respects human rights in its blood screening policies, gay men will continue to lie when giving blood.
“We already know people are lying. Blood safety rests 100 percent on the cooperation of our community. If the system respects us, we’ll cooperate. If the system doesn’t respect us, we won’t cooperate. If you want people to act honourably in an honour system, you have to treat them honourably,” says Elliott.
AIDS expert Dr Mark Wainberg was a witness in the Freeman case. In a May 25 Canadian Medical Association Journal article titled “Reconsidering the lifetime deferral of blood donation by men who have sex with men,” he contended with co-author Dr Norbert Gilmore that the blood ban — created in 1983 — was introduced when HIV infections were routinely contracted through blood transfusions, and, in 2010, it is no longer necessary to ban gay men from giving blood. But he said only monogamous gays should be able to give blood (rather than basing the question on safer sex practices).
When asked to reiterate his statement, he maintained only gay men in monogamous relationships should be able to give blood.
“Gay men are statistically more likely to have more partners than heterosexual men. Anyone who is healthy and in a stable, long-term relationship should be able to give blood. But right now, the blood agencies exclude all gay men. We say that’s homophobic and discriminatory,” says Wainberg.
In another interview, we probed co-author Gilmore for clarification on whether gays practising safer sex should be able to give blood while those who are not be deferred for a three-month period. He says the issue surrounding blood safety is about trust, not condom use.
“There is no really good protection against dishonesty in this society. Trust can get eroded very quickly if people disagree with rules. I see [the question as to whether a person has had safer sex] as an attempt to harmonize all behaviours. This has nothing to do with the use of condoms. It has to do with the two-week window period and how much trust can you put into it,” says Gilmore.
The two-week time period Gilmore refers to is the amount of time it usually takes to detect a new HIV infection. Three-month waiting periods are designed to be cautious, but they are a holdover from a time when screening tests were not completely accurate for newly infected people. He also says discrimination based on sexual orientation only hinders public trust, where more people are likely to untruthfully answer questions when donating blood.
But the bottom line, according to Gilmore and Wainberg, is that gay men who are not monogamously coupled — in other words, just about all gays — should still be excluded from giving blood.
But it’s not just about equality. The real issue behind this case, Elliott says, is whether the Charter applies to CBS’s policies at all.
CBS was created in the wake of the Canadian Red Cross’s tainted blood scandal. It is a privately run, not-for-profit corporation, but it’s funded mostly by government bucks. The Charter only applies to government agencies, making these kinds of arms-length groups a legal grey area. All that will change if the courts take Freeman’s side.
“It’s been a trend to outsource and privatize programs. I think the judge appreciates that issue is important; whatever the court decides will have ramifications beyond that point. If the Charter applies to only things they do and not where they write cheques, there’s going to be a limited scope of protection with the Charter. Whatever applies in this case to CBS will apply to all government activities,” says Elliott.
Ron Vezina, the national spokesperson for CBS, says if the courts find CBS is bound by the Charter, then they may have to comply in allowing gay men to donate blood.
“If the courts find we’re bound by the Charter, then we may have to comply. But if we’re not and we’re asked the court’s opinion and findings, we’ll definitely look at them. Whether this is seen as discriminatory or if it’s justified, there are so many sub-arguments in this case. Both Freeman and CBS suggested if a policy change were required, we should have 18 months to do so. Either way, we’re going to continue working with stakeholders and promote research on our agenda,” says Vezina.
With statistics indicating 60 percent of Ontario’s HIV population are gay men, Vezina asks Xtra readers to take into consideration the end user of blood supply products.
Canadian Hemophilia Society spokesperson John Plater says there’s a reason for the MSM blood donation deferral when the population has a significantly high level of STIs. Plater, a hemophiliac, was infected with HIV and hepatitis C through a blood transfusion in the 1980s.
“The tests for HIV and processes have to protect. In Canada, they’re the best they’ve ever been, and they’re best in the world. But they are not foolproof. And there are a lot of people relying on the safety of our blood products,” says Plater.
In the end, Kyle Freeman may be the last gay man to contest the CBS MSM blood deferral. The funding he received to fight the deep pockets of the blood bank came from the now-defunct Canadian Court Challenges Program (CCCP).
“Obviously, fighting big corporations is a huge amount of money to most people who would see money as an obstacle to justice,” says CCCP panel member Raj Anand.
Until recently, Freeman did not know he was grandfathered in the CCCP program, which allows him to apply for additional funding in the event of an appeal.
“Even with the kindness of lawyers agreeing to work on a pro-bono basis, a case such as this one, without CCCP`s help, would translate into a miscarriage of justice. I am personally relieved that I have been grandfathered and that funding may be approved should the case continue. But I am unaware of CCCP`s policies and whether I would continue to qualify at the appeal level — this is handled by my legal team,” says Freeman, via email while vacationing in Israel.
When Freeman is asked how he feels about his lawsuit finally coming to a close after nearly a decade, he says he’s waiting and trying to remain optimistic. If he loses the case, he says he will decide with his legal team whether an appeal is necessary.
“When the decision is rendered, my legal team will review the decision and decide how to proceed at that time,” says Freeman.