In the last few days, Canadian and American courts have ruled on gay rights. Somewhat unusually, activists are happy with the Yanks and cross with their northern neighbours. Even more unusually, I’m happy with both.
The Canadian ruling is the more complex, because it has given us the right decision for the wrong reasons. A judge has said the nation’s blood transfusion service can refuse gifts of blood from men who have had sex with other men. The right reason for this decision is that it is a cost-effective way of reducing the likelihood that sexually transmitted viruses, in particular HIV, make it in to the blood supply. The reason given (which I think sets a bad precedent) is that the blood transfusion service is not bound by legislation intended to reduce discrimination against people who choose anything other than vanilla sex, because it is not a government agency.
Of course that’s nonsense. You shouldn’t be allowed to discriminate against people on the basis of who they choose to have sex with in the private sector, in NGOs, in schools or anywhere else, unless they are choosing to have sex with someone who doesn’t or can’t consent. But I don’t believe that asking gay men not to give blood is discriminatory. None of us has a right to put out body fluids into a pool from which the public will draw, and the judge, Catherine Aitken, agreed, saying: “Put simply, blood donation is a gift. A gift is freely offered, but also must be freely received, or freely declined….There is no requirement under the law for CBS, or any other blood provider, to accept the gift of blood from anyone.”
I do agree that the exclusion criteria are a little draconian. “A man who has had sex with another man even once since 1977 is not allowed to donate blood in Canada or the United States,” says the blood service. In terms of HIV, what we’re most worried about are brand new infections — people who have lots of virus in their blood but haven’t yet got enough antibodies to HIV to show up on the screening tests that blood banks use. Those are the ones more likely to lead to the “tainted blood scandals” (blerch) that got the voters so exercised about blood safety in the first place. Blood donated by people who’ve been infected for longer will get picked up in the normal screening process so it’s not quite such a drama if they give blood. In most countries, it make it more expensive for the taxpayers who foot the bill, because blood is pooled into batches for testing, and any reactive test, including false positives, mean the whole batch gets thrown out. (Canada tests individual units so that’s less of a problem).
whine say that refusing to accept blood from gay men tars them with the brush of “AIDS victim” and reinforces stigma. “Not everyone who is gay has AIDS”, declared Kyle Freeman when he brought the case against the blood service that precipitated the ruling. Well of course not. Not everyone who is gay has HIV, either. But in Canada, a gay man is around 20 times more likely to be infected than a heterosexual (pdf) (51% of HIV infections are concentrated in the roughly 4% of sexually active adults who are gay men). If gay guys think that fact is stigmatising, they might want to reinvigorate HIV prevention efforts in their community. Screening men who have sex with men out of the pool of blood donors is not discrimination, it is common sense. (As an aside, I find it interesting that no-one seems to be whining complaining about the rights of drug injectors being violated because the blood service won’t accept their blood. Surely their rights are being violated in exactly the same way, even though they are actually less likely to be infected with HIV than gay men in some Canadian cities).
Meanwhile, across the border, American courts continue to chip away at the great edifice of true discrimination against people who choose their sex partners according to their own taste, rather than that of the Sex Police in groups like the Traditional Values Coalition. Hot on the heels of a ruling that repealed a ban on gay marriage in California, another California judge, Virginia Philips, has ruled that the “don’t ask, don’t tell” rule that makes it impossible for openly gay people to serve in the military is unconstitutional. This is very good news indeed; let’s hope the mid-term elections don’t scare the administration and the Senate into prolonging the agony for gay men and women who want to invest their lives waging war on behalf of the citizens of the US.
Thanks to Sarah Chown for nudging me to write about this.