A gay man in Ontario will be in court later this month arguing that Health Canada discriminates against him by overseeing the ban preventing men who recently have had sex with other men from donating blood.
The federal government has been trying to block that challenge, arguing it has no power to change Canadian Blood Services’ donor criteria.
A federal court judge will hear the case on May 27.
The case dates back to 2016, when Christopher Karas first brought a human rights complaint against Health Canada. He accused the department of discriminating against him on the basis of his sexual orientation through its role in upholding Canadian Blood Services’ policy of prohibiting men who have sex with men from donating blood in Canada unless they’ve been celibate for a period of time.
When Karas first applied to the Canadian Human Rights Commission, that period of time was one year; it has since been dropped to three months.
For years, the not-for-profit Canadian Blood Services has argued the deferment period is necessary because HIV is more prevalent among men who have sex with men — sometimes referred to as the MSM population. The non-profit screens out MSM with its donor health assessment questionnaire before accepting donations.
Karas said the ban weighed on his sense of self-worth and made him feel that “he was of very little value.”
“To have erroneous policies that are archaic and discriminatory like this, barring donors and discouraging donors from donating and creating stigma, is an inappropriate way for our blood system to operate,” he said.
“What kind of society do we want to live in? Do we want to live in a society where LGBTQ people are set aside, are excluded and not given the opportunity to fully participate?”
Karas and his lawyer Gregory Ko argue that while Health Canada does not directly take blood donations, it grants regulatory approval to Canadian Blood Services’ screening.
“Health Canada is intimately involved in implementing, certainly approving, this blood ban that is imposed on gay folks,” Ko said.
“Their fingers are frankly all over this.”
‘No public interest in pursuing a complaint,’ says Health Canada
Health Canada disagrees, saying it has never issued a directive requiring Canadian Blood Services to adopt the ban. The department says it only reviews the blood service’s policies and procedures for safety reasons and has no legal authority to direct the arm’s-length agency to do anything.
Canada’s Blood Regulations do authorize the department to ask Canadian Blood Services to address an emerging health issue, such as SARS or the West Nile virus. Health Canada says that has no application to Karas’ complaint because his situation is not an “emerging health issue” or a “potential epidemic.”
“There is no public interest in pursuing a complaint against a party like Health Canada who has not committed the alleged discrimination and has no authority to rescind the policy giving rise to the alleged discrimination,” says part of Health Canada’s submission to the Canadian Human Rights Commission in 2019.
That year, the commission sent Karas’ complaint for further inquiry by the Canadian Human Rights Tribunal, saying preliminary evidence indicated a relationship between Health Canada and CBS that warranted further investigation.
“It is not plain and obvious at the preliminary stage that the respondent is not a party to the alleged discrimination,” said the human rights commission.
Now, the Attorney General of Canada, on behalf of Health Canada, is trying to stop that inquiry and is seeking a judicial review of the Canadian Human Rights Commission’s decision at the Federal Court level.
In court documents filed earlier this year, the government repeated its claim that Health Canada did not discriminate against Karas and also accused the Canadian Human Rights Commission of pursuing an unfair investigation.
“The Commission failed to interview Health Canada witnesses who could have established Health Canada’s limited role as a regulator of blood safety,” says the document.
“The Commission’s decision reflects this one-sided and incomplete investigation. It fails to consider any of Health Canada’s submissions.”
The commission said it would not offer a comment for this story, citing ongoing court proceedings.
‘Big optics concern,’ says lawyer
Ko said the federal government’s attempt to trigger a judicial review is tantamount to trying to end the human rights tribunal inquiry.
“The approach that the federal government has taken is both surprising and quite aggressive,” he said.
The government is also seeking costs, which Karas said would impose a substantial financial burden.
“There’s this David-Goliath story,” he said.
Ko said he believes Ottawa is using the challenge in an attempt to disassociate itself from the allegations of discrimination.
“There’s a big optics concern,” he said. “Certainly [it’s] a government that does not want to shine a light on its involvement in this discriminatory policy, and that’s kind of what is disturbing about the move on the part of the federal government.”
The challenge comes as the Liberal government continues to promise to end what it’s called the “discriminatory” ban on blood donations. The promise was made in both the 2015 and 2019 federal elections.
When asked how the government reconciles the court challenge with that promise, a spokesperson for Health Minister Patty Hajdu said he couldn’t comment because the case is before the courts.
“I think that should be concerning to all of us, given that they’ve been so vocal on this file but have been unwilling to act,” said Karas.
“There hasn’t been any political will. And I think that we need to continue to push on that.”