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!