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Gay blood donor case wraps

All sides make closing arguments in trial of gay donor Kyle Freeman

Case wraps: Freeman?s lawyer, Patricia LeFebour, poses in front of an ottawa court room. Credit: Neil McKinnon

After a 10-week trial in an Ottawa courtroom, the case of Kyle Freeman v Canadian Blood Services (CBS) has closed. The proceedings, which focus on a gay man who lied about his sexuality in order to give blood, have lasted nearly eight years.

During the week of Jan 8, Justice Catherine Aitken heard arguments from six different lawyers, three per side. Because of the complexity of the case, a verdict is not expected until June.

The decision could determine whether or not CBS lifts its lifetime ban on blood donations by men who have had sex with another man, even once, since 1977.

Freeman’s case is only one prong of the movement to repeal the ban on gay blood. A host of young activists, concentrated on university campuses, are agitating for a change in the policy, which was first adopted in 1983. Freeman’s case is, however, one of the most controversial efforts because he took matters into his own hands, donating blood and pretending he wasn’t gay. While his blood never put anyone in harm’s way — he was a conscientious practitioner of safer sex and was regularly tested for HIV — some activists have denounced Freeman as a renegade.

Now, after all these years, Freeman awaits a decision that could cost him hundreds of thousands of dollars.

The case against Kyle

Canadian Hemophilia Society (CHS) has a history of advocating tight restrictions on gay men’s blood. Hemophiliacs were among the hardest hit by the tainted blood scandal; today, CHS plays an active role in shaping Canadian blood policy.

Repeating its longstanding position, spokesperson John Plater says the gay blood donor ban is reasonable.

“It’s tough because you have a group of people [the gay community] who have faced the worst discrimination in history. No one’s saying it’s easy. At the end of the day, we have to do the best we can as a society to have as little discrimination as possible. But we have to recognize science epidemiology is about discriminating,” says Plater.

Plater says CHS decided to intervene in this case because it felt it had a legitimate concern on its outcome.

“The reason why we feel it is justified from an epidemiological point of view is the [men who have sex with men] population presents a higher risk in the transmission of STIs,” says Plater.

Plater points to the fact that gay men make up the core of Ontario’s HIV population, with statistics indicating that 60 percent of poz folks in the province are gay men. When compared to other groups, the numbers are much lower. For example, 13 percent of Ontario’s poz folks are aboriginal.

“It is significantly the highest of all HIV groups. The question doesn’t become at what point do you add groups to the deferral to make things fair. That’s not the issue in this case. The issue in this case is should the MSM deferral be removed? When CBS changes are made, the changes should be made so the system should be as safe or safer than today. If the court’s view is the deferral is discriminatory, then the system should be changed to be as safe or safer. But this could result in longer deferrals where the epidemiology supports it,” says Plater.

In other words, if the rules are found to be discriminatory, CBS could add more groups to the lifetime deferral category, rather than remove gay men from the list.

CBS is represented by lawyer Sally Gomery. She points to statistics that suggest 15 to 20 percent, or one in six, gay men engage in high-risk sexual activity.

“From the perspective of blood safety, you’re not just worried about the risks the person has taken in the last year. You’re worried about their cumulative risk over the years that person has been sexually active. The one in six number represents the statistic over a lifetime. The other difficulty is it’s really hard to separate out on the basis of a three- to five-minute screening process to find out who’s practising safer sexual practices,” says Gomery.

Freeman’s case against CBS for discrimination relies on two sections of the Canadian Charter of Rights and Freedoms. Gomery argues that blood donation falls outside of the Charter’s realm.

“CBS thinks — and the Attorney General thinks — that CBS is not a part of the government. It’s not a Crown corporation. There’s no law that created CBS. It’s not run by the government. It’s a private company. To even make a claim under the Canadian Charter, Mr Freeman has to show CBS is part of the government or controlled by government or doing something which is a government activity,” says Gomery.

Kyle’s defenders

Freeman’s lawyer, Patricia LeFebour, has given a lot of thought to the last of Gomery’s objections.

“CBS was created in 1998 following the recommendation in the Krever Report. CBS was created by a memorandum of understanding which was signed by all provincial/territorial ministers of health. The operation of a blood system is not part of the private sector — it is an entity whose members (like shareholders in a corporation) are the provincial/territorial ministers of health. It is heavily regulated by the federal government and requires prior approval from Health Canada [and] cannot change any of its donor deferral policies,” says LeFebour.

The policies surrounding blood donation affect how Canadians view gay men, says Canadian AIDS Society (CAS) lawyer Doug Elliott.

“CAS has been involved in protecting the blood supply since the Krever inquiry. We reject the position of CBS that you have to create a contest between human rights and blood supply. Experience has taught us the only AIDS strategies that work are ones that respect human rights. The fact that CBS refuses to even consider this tiny change recommended by their own expert demonstrates why they have lost the trust of the gay community. We believe that the current question is harmful because gay people will not cooperate with it,” says Elliott.

What Kyle says

In a phone interview with Capital Xtra, Freeman says he’s relieved to have closure in his case against CBS. He says the case has tired him out, but he maintains he will continue fighting, even if it takes another eight years.

“I’ve done nothing wrong. I’m not being cocky. I did what I thought was right. I donated blood and thought I was helping people. The question doesn’t make sense, scientifically or socially,” says Freeman.

If Freeman’s case goes to the Supreme Court, he could be in his mid-40s when a final decision is reached. He was in his early 20s when he donated blood and 29 when he found out CBS was suing him. When his case finally had its turn in Ontario Superior Court this year, he was 37. But he says the thought of spending years more in court doesn’t faze him.

“I don’t see it taking away my life. This case empowers me. There are a lot of people who need healthy blood. They’re in need of blood products to help people who are not well,” says Freeman.