Health Canada is "exploring" whether a federal policy that restricts gay and bisexual men from donating to sperm banks in Canada should change, after CTV News exclusively reported on Wednesday that a gay man is taking the federal government to court over it.
"With the recent change in screening criteria for donating blood, we understand that Health Canada is exploring if similar updates can be made in the context of donor sperm and ova," said Minister for Women and Gender Equality and Youth Marci Ien's office in a statement.
"Canadians deserve policies that are safe, non-discriminatory and based in science—no matter who you love," said Ien's press secretary Johise Namwira.
Commitments to look into the current policy were made by a few ministers on Parliament Hill on Thursday, on the heels of the CTV News report that a Toronto man is challenging the constitutionality of a Health Canada directive that deems any man who has had sex with another man in the preceding three months as an "unsuitable" donor.
It's a blanket policy that the man bringing the legal challenge says makes him feel like a "second-class citizen."
"Why I decided to take this to court is because of that feeling of discrimination," said Aziz M., the man bringing the lawsuit. Out of concern for his privacy, CTV News has agreed not to use his full name.
While the directive does not mention transgender or non-binary donors, the policy also applies to individuals who may not identify as male but would be categorized as men under the directive.
Tourism Minister Randy Boissonnault, who once was Prime Minister Justin Trudeau's special adviser on LGBTQ2S+ issues, said that the Liberal government has "made a lot of strides" but "we're always going to have more work to do."
"Issues like this that come up need to be unraveled so that we have full participation in society by people regardless of their sexual orientation, gender identity or expression," Boissonnault said.
Justice Minister David Lametti told reporters that the policy was "certainly something that we will look at."
"I've [been] made aware of the issue this morning when I read the papers, and certainly, we live in a charter society," Lametti told reporters on Parliament Hill on Thursday.
The lawsuit was filed in January with the Superior Court of Ontario and Lametti, as the Attorney General of Canada, is the respondent.
Gregory Ko, who is co-counsel on the case and a partner at law firm Kastner Lam LLP, says that the Attorney General has assigned a lawyer in their Toronto office to respond to the litigation.
Last year, after years of successive updates and backed by research and risk modelling, a similar policy restricting blood donations from men who have sex with men was replaced by a behaviour-based screening system for all donors, regardless of gender or sexuality.
This change to the blood donation rules is part of the reason why the current sperm regulations are under the microscope. It raises questions over why, when layers of testing and screening are involved, the science in one instance supports moving away from a blanket restriction, and the other doesn’t.
"It's similar to the unscientific and discriminatory ban," said NDP MP and health critic Don Davies. "It sounds to me like it's a similar issue."
When the blood donation screening criteria changed, Prime Minister Justin Trudeau cheered the end of what he said was a "discriminatory and wrong" policy.
Asked whether, similar to the blood ban, they think the current sperm donation regulations are discriminatory, the ministers who CTV News spoke with weren't definitive.
"Whatever rules there are should be based on evidence," said Minister of Families, Children and Social Development Karina Gould. "We should be making sure that it's based on actual evidence and that we shouldn't be doing anything that is discriminatory on behalf of the Government of Canada."
Minister of Sport Pascale St-Onge—who made history as the first out lesbian federal cabinet minister when she was named to Trudeau's cabinet in 2021—said "generally speaking I don't think that there should be discrimination against gay men."
Boissonnault said it's an issue that he'll be raising with Health Minister Jean-Yves Duclos, who is facing calls to use the power he has as the minister responsible, to step in and update the directive.
"I think it's the minister's duty to ensure that there's no discrimination in Canadian health policy," said Davies.
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