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Second gay blood ban case heads to court

Big differences between Lomaga's case and Freeman's leave outcome far from clear

Adrian Lomaga. Credit: Jenna Wakani
Adrian Lomaga will have his hands full when he takes on blood bank Héma-Québec (HQ) on April 4.
 
Lomaga is the second Canadian gay man to challenge Canada’s blood donation policies in court. The first was Kyle Freeman, who lost a protracted battle with Canadian Blood Services (CBS) last fall. 
 
But Freeman’s case and Lomaga’s against HQ are very different. Freeman’s battle started when he sent CBS an anonymous email admitting to lying on the donor question “Have you had sex with a man, even one time since 1977?” The blood bank tracked his IP address and served him with a negligence lawsuit.
 
In her judgment, Ontario Superior Court Justice Catherine Aitken said if Freeman had a problem with CBS’s MSM blood deferral, he should have launched action without lying to donate blood.
 
In 2005, Lomaga did just that. As a law student at McGill, he was reluctantly coming out of the closet and did not feel good about himself. When he went to give blood at HQ in Montreal, he was unaware of an MSM blood deferral, and he says it made him feel like a second-class citizen.
 
A second wrinkle in Freeman’s case — he was eventually excluded from donating blood because of a non-contagious late-latent syphilis strain in his blood — is not a factor in Lomaga’s, because Lomaga never donated blood.
 
Another difference in Lomaga’s case is that he is not suing Health Canada, although Health Canada chose to intervene in the case.
 
In fact, perhaps oddly, HQ is suing Health Canada. HQ’s position is that if the MSM deferral is found to be discriminatory, it’s not HQ’s fault because Health Canada sets the rules.
 
Moreover, HQ’s top doctor, Gilles Delage, has already recommended that the blood bank move to a simple one-year donor deferral for men who’ve had gay sex. However, in 2006 his recommendation was refused by the Hemovigilance Committee. In its decision, Health Canada stated:
 
“Epidemiologic data still indicates that there is a higher incidence of HIV transmitted among MSM, as well as the increased risk of transmission of hepatitis B, and to a lesser extent hepatitis C. For this reason, deferrals in blood donation have been implemented. A proposed change in policy in the United States to 12 months deferral was driven by perceived discrimination, as voiced by interest groups. It is not Health Canada’s intent to change the present deferral.”
 
As well, much of Freeman’s case hinged on the question of whether or not CBS is a governmental body. In her judgment, Aitken’s 187-page ruling said CBS is not a government entity and therefore not subject to the Charter.
 
That’s not as important in the Lomaga case, which will be governed by either the Quebec or Canadian Charter, depending on whether HQ is ruled to be a government entity. If the federal Charter fails to apply to HQ’s blood donation policies, Quebec’s Charter will.
 
If those factors make Lomaga’s case easier, there are other factors that make it more difficult. For one thing, Lomaga is on his own. Unlike the Freeman case — in which both Egale Canada and the Canadian AIDS Society intervened — Lomaga has no interveners on his behalf.
 
“Héma-Québec accused me of making up a story about trying to donate my blood. This only aggravated the hurt already endured,” Lomaga says in an interview with Xtra.
 
“The most important thing in [Lomaga’s case] is the principle,” says his lawyer, Julius Grey.
 
“My position is the MSM lifetime deferral is either contrary to Canadian Charter or the Quebec charter,” Lomaga says. “There’s going to have to be some deferral period for gay and bisexual blood donors. All of the risk is borne by the end user. The prevalence of HIV in the gay community is much higher than in the heterosexual population. I agree there has to be some deferral period. But if they start implementing testing on sexual practices, which gets into what kind of sex the donor has and how they do it, there aren’t the studies at this time to safely implement that kind of screening process,” says Lomaga.
 
While Lomaga admits that being a lawyer somewhat helps him understand what he is up against, he leaves it to his attorney to prepare the trial. He declined to speculate on his case’s outcome.
 
Originally seeking $1,500 for a small claims case, Lomaga v Héma-Québec was transferred to Superior Court, where Health Canada was added.
 
Even with Grey working pro-bono and disbursements paid through Egale, the current tab for Lomaga’s case is in excess of $50,000.
 
Xtra was unable to reach a HQ spokesperson for comment.