Fighting the System -- as Blood Donor

Canadian Blood Services wrongly assumes that every man who has had sex -- even once -- with another man since 1977 presents the same HIV risk, an attorney argued January 5 in an Ottawa courtroom. The agency's "blanket ban" on blood donations by men who have sex with men also applies to MSM who practice safer sex and might pose a "negligible" risk, Patricia LeFebour said in closing arguments of a civil trial.

"It doesn't matter whether you engage in anal sex at all. It doesn't matter if you use a condom. It doesn't matter if you're in a long-term monogamous relationship. Or you're legally married as a gay man to your male spouse," said LeFebour, arguing on behalf of Kyle Freeman. Freeman, who was sued by CBS for repeatedly lying about his sexual history on donor-screening questionnaires, filed a countersuit alleging the policy violates his Charter rights and those of other MSM.

The lifetime ban is "medically and scientifically unwarranted," LeFebour argued. "No one is saying throw out a deferral period altogether. There should be a deferral. It shouldn't be 32 years." For instance, Australia, Japan, and South Africa all have 12-month deferrals, she noted.

"Mr. Freeman requests simply that the court follow the path of previous decisions on sexual orientation and move to break down the insidious stereotype that all gay men are promiscuous carriers of disease, including HIV," LeFebour said.

The CBS does not reject donors for being gay but rather for engaging in behavior that puts them at significantly higher risk for contracting HIV, the agency's lawyer said in closing remarks. As a nongovernmental entity, the CBS is not entirely subject to Charter rights claims, attorney Sally Gomery said.

Freeman is seeking $242,000 in damages.