Should gays be legally permitted to give blood?

I’m stealing this topic from Raphael Alexander, a conservative blogger.

At issue is this: Kyle Freeman, a gay man, has donated blood some 18 times as of 2002. Before a person is permitted to donate blood, he/she must answer a questionnaire provided by Canadian Blood Services, the entity in charge of managing the nation’s bloody supply. The questionnaire is designed to screen out individuals from high risk groups, like intravenous drug users.

One of the screening questions, only provided to males, asks if the would-be donor if he has had sex with another man, even once, since 1977. If the answer is yes, the person is not permitted to give blood.

Freeman was able to donate blood only by giving a false answer to this question. When Canadian Blood Services discovered the deception, they tried to sue him for “negligent misrepresentation”, prompting Freeman to launch his own lawsuit.

Freeman’s suit is based on the equality provisions set out in the Charter of Rights and Freedoms. His argument is that, by excluding gay men from the donor pool, Canadian Blood Services is unlawfully discriminating against them.

I think a good case could be made that the blanket exclusion of any male who has had sex with a man is too broad, and runs afoul of anti-discrimination law. However, that’s not really the issue in this case. As the lawyer for Canadian Blood Services  said,

“At the heart of this claim … is the question whether a person who seeks to donate blood to Canadian Blood Services … has a legal duty to tell the truth when asked a question about his or her personal sexual history and whether that duty exists whether or not the person sincerely believes that the questions are necessary or justified or even discriminatory.

The argument being made here turns on deeply contentious issues in the philosophy of law. In order for a person to have a legal duty to perform some action, there must first be a valid law which commands him to act in that way. Canadian Blood Services alleges that a valid law exists compelling individuals to provide truthful answers to the questionnaire. But if the law isnt valid, then Freeman had no legal duty to provide truthful answers.

One can imagine a legal positivist and a natural lawyer squaring off on this issue.

Positivist: whether or not the questionnaire is discriminatory is immaterial. What matters is that a valid law was passed, one that compels individuals to answer the questionnaire in a truthful manner. By lying on the questionnaire, Freeman did not fulfill his legal duty.

Natural lawyer: if the questionnaire discriminates in an unjust manner, then it never should have been used in the first place. The law cannot compel individuals to participate in manifest injustice, and any law which purports to oblige individuals to do so is not really a law at all. Therefore, Freeman had no legal duty to tell the truth in this case.

The difficulty for Freeman — and the natural lawyer — is the tenuous relationship between the unjust practice, the discrimination, and the act of truthfully answering the questionnaire. It would be different if the law in question itself commanded unjust action. If the “law” required Freeman to engage in unjust/discriminatory behavior himself, then the natural lawyer could claim that the law itself was invalid, and that therefore it could not generate a legal obligation.

However, in this case, the legal obligation to tell the truth on the questionnaire only enables unjust discrimination. It does not cause it. The direct causal agent responsible for the discrimination is Canadian Blood Services, although obviously it is only able to discriminate because of the information gathered through the questionnaire.

At the same time, I think the natural lawyer might have a ready response: if one is certain that an entity will act unjustly on the basis of the information provided, can one be legally obligated to provide that information? Or doesn’t the validity of the law depend at least in part on the overall contribution the law makes to an unjust practice?

Suppose a regime enacts a law to collect income tax. At the time the law is enacted, the intention of the regime is to use the tax revenue to provide food for starving orphans. Arguably, the law would be valid, and one would have a legal obligation to pay one’s taxes.

But suppose it turns out that a portion of the revenue will be used to construct concentration camps for racial minorities? At that point, compliance with the tax law would, on the whole, contribute to injustice, which might be enough to undermine the validity of the law itself.

Obviously, I doubt the legal arguments in this case will move to this level of analysis. A pity!

7 Responses to Should gays be legally permitted to give blood?

  1. Eric says:

    Very interesting legal analysis of the case however the whole argument revolves around the idea that banning homosexual *men* from donating blood is an unjust discrimination.

    The facts are that most men with HIV get it from homosexual behaviour:

    “MSM [men who have sex with men] accounted for 71% of all HIV infections among male adults and adolescents in 2005 (based on data from 33 states with long-term, confidential name-based HIV reporting), even though only about 5% to 7% of male adults and adolescents in the United States identify themselves as MSM”

    Source: http://www.cdc.gov/hiv/topics/msm/resources/factsheets/msm.htm

    Moreover, in the homosexual male population the rate of infection by HIV is huge according to what studies are done:

    “In a 2005 study of 5 large US cities, 46% of African American MSM [men who have sex with men] were HIV-positive.”

    Source: http://www.cdc.gov/hiv/topics/msm/index.htm

    You’ll note that women who have sex with women are not banned from donating blood, proving that the restriction is based on scientific and statistical grounds and not ideological.

  2. John says:

    In my person opinion I believe that homosexuals should NOT be allowed to donate blood. The reason I say this is because homosexuals have a higher chance of getting diseases than people who are straight. Many people see it as a “discrimination” but I don’t see in that way. If the government is banning homosexuals from donating blood there must be a reason behind that choice. I live in Toronto, Ontario and every year we have a pride parade which is a pretty big event down here. So tell me, how is it that the government is being discriminating? I don’t have any problems with homosexual people, it’s just that this is a very serious thing, it’s a life or death situation. I am aware that when people donate blood the blood is tested for any viruses or diseases. But however that is not the point in this case. The whole reason about this argument is men who have sex with men have a higher risk of being infected with a virus or disease. Hence why they do not allow women who have had anal sex with a bisexual man to donate blood as well. On the other hand lesbian women ARE allowed to donate blood because they are not having anal sex the same way homosexual men do. People have to understand that when men have anal sex they use their own body parts, unlike lesbian women who use sex toys and are not as dirty as actual flesh. I believe that it is very wrong that homosexual people are lying on the blood donation surveys because as I said before this is a serious matter. What would happen if somehow that blood got through the testing and was HIV positive. Why should the person who is receiving the blood be the one who has to suffer just because a homosexual didn’t want to follow the rules.

    In conclusion I believe that homosexuals should not be allowed to donate blood because it is very well proven that men who have sex with men have a higher chance than anyone else to get a virus or disease in their blood.

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