OTTAWA -- Years after first promising to do so, Prime Minister Justin Trudeau said during Pride month last June that he hoped to “very soon” announce the elimination of the blood donation ban for gay men as well as some other folks in the LGBTQ2S+ community.
It’s nearly a year later and the policy remains unchanged, with the government now arguing in federal court, that while they want to see the blood ban eliminated, it’s not within their powers to unilaterally change the policy.
Opposition parties have begun increasing the political pressure to see the Liberals do more to make good on their two-time election commitment, as LGBTQ2S+ advocates and those who are prohibited from donating continue to voice their frustration, saying the policy is discriminatory and not based in science.
So, how close is the policy to actually changing? And what has to happen before the blood ban comes to an end?
WHERE THE POLICY STANDS
In Canada, both Canadian Blood Services and Hema-Quebec have policies in place prohibiting gay and bisexual men who have sex with men, as well as certain trans folks who have sex with men from donating blood unless they have been abstinent for three months.
The policy started in 1992 as an outright lifetime ban following the tainted blood scandal that played out between the 1980s and 1990s and saw thousands of Canadians infected with HIV after receiving donor blood. During that scandal, the Canadian Red Cross -- which was the predecessor to Canadian Blood Services and Hema-Quebec -- failed to properly test and screen donors, resulting in thousands of Canadians being exposed to HIV through contaminated blood products.
During the nearly three decades since, the policy has been reduced, first in 2013 seeing the lifetime ban knocked down to a five-year deferral period. That meant, rather than outright refusing donations from men who had sex with men, or the “MSM” community as some have coined it, donations would be accepted only if the donor had not been sexually active for five years.
In 2015, the Liberals campaigned on ending the then-five-year ban altogether. At the time, the party stated that the policy "ignores scientific evidence and must end.” A year later, the five-year deferral period was reduced to one year.
Then in June 2019, the second reduction in the deferral period under the federal Liberals came into effect, seeing the policy allow donations from gay and bisexual men or trans folks who have sex with men, if they’d been abstinent for three months.
For years advocates have called for the blood ban to be replaced by a gender-neutral screening process that would be based on sexual behaviour and not orientation.
As has been the case for some time, every blood donation in Canada is tested for HIV. Under current testing capabilities, HIV can be detected in a “window period” of approximately nine days after infection, and advocates have suggested updated lifestyle-focused screening questions and eligibility would be determined based on that, rather than outright eliminating certain LGBTQ2S+ donors who are sexually active.
It’s an approach that Canadian Blood Services says is ultimately their objective and that the three-month wait is an “incremental step” in the journey, though there’s currently no timeline on when that change will come.
The evolutions to the policy over the last several years were the result of Health Canada approving regulatory submissions from Canadian Blood Services and Hema-Quebec, which included risk modelling showing it would be safe to do so. The federal health agency acts as the regulator for the two blood agencies, though they largely operate independently.
WHO DECIDES THE POLICY?
At the heart of the ongoing contention over the current blood donation policy is what appears to be a struggle over who has the power to change it.
While the federal government’s most recent messaging is that the responsibility largely lies with the blood agencies, critics have pointed to a section of Canada’s Blood Regulations that spells out how the health minister has the ability to change the terms and conditions of blood donations if it is deemed necessary.
As the system operates currently, blood donation practices are determined and implemented by the blood agencies Canadian Blood Services and Hema-Quebec, following authorizations issued by Health Canada.
“For any changes to donor eligibility criteria to be approved, Canadian Blood Services must provide evidence to Health Canada, our regulator, that the changes are safe and supported by stakeholder groups, especially patients,” said Canadian Blood Services spokesperson Delphine Denis.
From Health Canada’s perspective, these arms-length organizations operate independently, other than relying on the agency to sign off on changes to their practices and therefore, the agency claims “there are no federal regulations prohibiting men who have sex with men (MSM) and other groups from donating blood.”
Though the polices that do just that came to be as a result of federal authorization.
BREWING COURT BATTLE
Questions over who is responsible for seeing the policy change are about to play out in federal court.
In 2016, Christopher Karas brought a human rights complaint against Health Canada, alleging the agency discriminated against him on the basis of sexual orientation by denying him the ability to donate blood, despite having recent negative HIV test results in-hand when he went to a clinic.
“I felt like I couldn’t be me… I felt like I had to do something,” he said in an interview with CTVNews.ca.
In 2019, the Canadian Human Rights Commission issued a preliminary decision that the case merited further investigation and referred the matter to a tribunal.
In response, the federal government has launched a judicial review of the commission’s decision, trying to halt the complaint from going any further.
When Karas learned that the federal government was looking to quash the case and potentially seek costs from him if their judicial review is successful, he said he was “shocked.”
“It was as if they were, you know, declaring war on queers,” he said. “I realized that the government wasn’t prepared to eliminate this policy, that they weren’t going to follow through.”
In court documents reviewed by CTVNews.ca, the Attorney General of Canada argues that Health Canada has not discriminated against Karas as the agency has “no authority to rescind the policy” and a “limited role” to intervene in Canadian Blood Services’ work unless it’s a matter of blood safety.
“Health Canada does not require, implement or administer the MSM policy or any other blood screening policy. Health Canada does not take blood donations,” reads records filed by the Attorney General on behalf of Health Canada. “The independence of CBS [Canadian Blood Services] from Health Canada and government intervention is a cornerstone of Canada’s blood system.”
Karas’ lawyer Gregory Ko, a partner with Toronto firm Kastner Lam, said decisions aren’t often challenged at this preliminary phase.
“There is a bit of a David and Goliath dynamic here. We have the full resources of the government against Mr. Karas, who is a private citizen who took on the initiative of challenging the government and this discriminatory policy,” Ko said.
“Our view was that the Human Rights Commission determined there were multiple reasons for why this matter needs to be looked into in a full inquiry,” he said.
Ko noted that Health Canada is involved with the blood ban policy at various stages: It funds the research that would allow an end to the ban, it participates in pre-submission meetings with Canadian Blood Services, and it reviews and approves the donor screening criteria that precludes gay, bisexual, and some trans folks from donating blood.
He said his client’s position in part is that the tribunal should be allowed to proceed, so that all Canadians might better understand the relationship is between Health Canada and Canadian Blood Services, and what’ll be needed before the blood ban becomes a thing of the past.
The judicial review hearing is scheduled for May 27.
RESEARCH IS 'ONGOING'
While the blood agencies’ independence is “a cornerstone” in the eyes of the government, since taking office, the Liberals have funded more than a dozen research projects that are meant to help bolster the evidence-based decision-making process of Canadian Blood Services and Hema-Quebec. The research includes studying donors’ eligibility criteria and alternative screening processes.
Already, the research has played a role in seeing the deferral period reduced from five years to the current three months, say federal officials. However, the message continues to be that more studies need to be completed before the agencies are in a position to propose a different approach to screening out donors.
This work had been expected to wrap up by last fall, with the new recommended guidelines to be presented to the government in early 2020. That still has not happened.
In a statement provided to CTVNews.ca, Health Canada and the Public Health Agency of Canada (PHAC) said that research “is ongoing,” with some results expected sometime “in 2021.”
“Because research is incremental by nature, building a sufficient knowledge base cannot be rushed nor results predicted,” said Health Canada and PHAC spokesperson Geoffroy Legault-Thivierge.
In a statement to CTVNews.ca, Minister of Diversity and Inclusion and Youth Bardish Chagger said the Liberals continue to share the view that the policy is “discriminatory,” but that the government has “not yet received” a request from the blood agencies to change the deferral period.
When Chagger and Health Minister Patty Hajdu were given their current cabinet positions after the 2019 federal election, Trudeau mandated them to work with the two blood agencies to “implement a behaviour-based model of donation that eliminates the blood ban.”
“We continue to encourage Canadian Blood Services and Héma-Québec to move toward a behaviour-based model and are eagerly awaiting a request from them to eliminate the ban. Our government is committed to seeing this discriminatory policy come to an end,” said Chagger.
The minister has previously said the pandemic has played a role in why donor eligibility hadn’t been opened up, as "there has been some delays within research because of COVID-19."
WHAT THE SCIENCE SHOWS
While federal officials continue to point to the need for more research to be completed before suggesting an alternative approach that will maintain a safe blood supply, the data available indicates that easing up on the amount of time impacted donors have to be abstinent for in the past has not resulted in a single instance of HIV transmission from donated blood.
Asked whether there has been any change in the transmissible disease rates as a result of the past reductions to the deferral period, PHAC said that, according to its “Transfusion Transmitted Injuries Surveillance System (TTISS)” that between 2009 and 2018 there have been no reports of HIV transmission through blood transfusion in Canada.
Citing national HIV surveillance data of newly diagnosed cases where the exposure was known, PHAC said that 39.7 per cent of all reported cases in adults could be attributed to the MSM category, while the second-most reported exposure category was heterosexual contact, at 28.3 per cent of cases.
Further, Canadian Blood Services said that in the nearly two years since the waiting period went from one year to three months, the agency has “not seen an increase in the risk of transmissible disease. The rate of HIV in our donors remains extremely low, and Canada continues to have one of the safest blood supplies in the world.”
The case for moving to a behaviour-based model was given new attention when the COVID-19 pandemic saw fewer donations being made, prompting concerns that supply wouldn’t be able to keep up with the constant demand.
Canadian Blood Services put out calls for more blood donors, and then began seeking plasma donations from people who had recovered from COVID-19 to be used in critical research and possible treatments. Antibodies from people who have already had the virus, found in their plasma, could help in treating new patients who are severely ill and offer new serological insights.
Still, willing donors who had been infected with COVID-19 and wanted to help with studies into possible cures, have been turned away due to the existing prohibition.
PROGRESS ON PLASMA
People looking to donate plasma may soon be able to, however.
In the most recent step towards eradicating the blood ban, Canadian Blood Services made a submission to Health Canada earlier this month for a “pilot project” to begin allowing MSM donors to donate plasma by implementing a behaviour-based screening system.
In a statement to CTVNews.ca, Canadian Blood Services said this was “the first time that Canadian Blood Services has had the evidence and support needed to seek regulatory approval to implement behaviour-based criteria for men who have sex with men rather than a reduced waiting period.”
Health Canada has said it aims to review the submission within 90 days and if approved, plasma would begin to be accepted from donor centres in Calgary and London, Ont. this fall, with plans to expand it to other centres in the future.
Seeking to address the question of why the science is only there to support collecting blood plasma and not whole blood, Canadian Blood Services said that “the process of manufacturing medications from plasma inactivates pathogens. This makes expanding eligibility for source plasma a logical next step.”
To Karas, whether or not Health Canada approves the plasma donation policy change, he plans to continue his case so long as the blood donation policy remains, saying the potential small change feels similar to past changes to the length of the deferral period, in that it doesn’t go far enough.
“We're finding ourselves in another situation where they won't accept our whole blood, they won't accept my whole blood… Why won’t they accept me wholly?” he said. “The people who are really impacted by this are the people who need these donations.”
POLITICAL PRESSURE MOUNTS
In addition to advocacy groups continuing to push for quick action, the Liberals are facing increasing political pressure from both sides of the political spectrum, with both NDP Leader Jagmeet Singh and Conservative Leader Erin O’Toole raising the issue in the House of Commons recently.
While the New Democrat and Green parties have opposed what they’ve described as a “homophobic” blood ban for some time, in the last few years the governing Liberals have begun facing new criticism from some members of the Conservative caucus.
Rookie Conservative MP Eric Duncan made a splash in November 2020 when he grilled Hajdu over campaigning on the promise to gay men, suggesting she was now “hiding behind a bunch of bureaucrats and organizations.”
He repeatedly said the ban is based on negative stigma and asked her pointedly whether she would accept a blood donation from him as a gay man, which she didn’t directly respond to, emphasizing the independence of the blood agencies and stating that past Conservative governments have been “no friend” to the LGBTQ2S+ community.
It’s a topic Duncan has raised numerous times since, opening up about his personal experience of going to donate blood for the first time and being unaware of the policy. He was not out to his friends or family yet, so he pretended to go through the motions, but he couldn’t actually donate. Duncan said he was “absolutely devastated” by the experience.
“That was one of the very few times in my life, and I consider myself quite privileged, that I felt there was something wrong with me for being gay.”
In an interview with CTVNews.ca, Duncan said it’s frustrating that the government continues to defer to Canadian Blood Services because in his view, the research already shows that the ban is “outdated.”
“Why did you promise it during an election campaign if it's now independent and out of your control to do that?” he said. “These statements are nice but it's actually following through and delivering.”
While Duncan said it’s still “a new angle” for some members of the Conservative party to be outspoken on the ban, he hinted that plans are underway to keep pushing the government on the issue.
“Stay tuned,” he said.
Also continuing to raise the issue in the House of Commons as he has for years, out gay NDP MP Randall Garrison is waiting for his turn on the private members’ business roster so that he can advance a motion calling for the government to lift the restrictions.
In an interview with CTVNews.ca, Garrison said that it’s “beyond belief” that the government is fighting Karas in court over the ban.
He said that more than a dozen other countries currently have no deferral period for donations from men who have sex with men, and in his view, the federal government does have the ability to ask for a policy change.
“Clearly they have the powers under the regulations to order changes. The regulations specifically say that restrictions that are no longer necessary can be lifted,” he said. “I definitely believe the government's trying to evade any controversy here, but there shouldn't be any controversy… There is no excuse for this.”
Garrison said that when he first asked Canadian Blood Services what needed to be done to eliminate the ban, the message was that they were waiting on research to back up the policy change. “That was nine years ago,” he said.
Liberal MPs too, have voiced their frustration over the ban still existing, with out Liberal MP Rob Oliphant sharing in the House of Commons in October 2020 his experience of being ineligible and stating that he agreed with questions raised by an opposition colleague that the policy stigmatized gay men while allowing sexually promiscuous heterosexual men to donate blood.
“It is wrong that I am not allowed to give blood, and it is a loss to Canadian society that I am not allowed to give blood,” Oliphant said at the time. “I will not stop working, even with my own government, until the issue around blood donations is based on behaviour, not on orientation. It is not scientific. It is not right. It is wrong, and it is part of the legacy of discrimination.”
WHAT HAPPENS NOW?
While Karas’ case continues to play out, and with Pride month around the corner, the federal Liberals say they will continue to wait for a request from the independent blood agencies to make a change.
“You can't make promises like this… stating this so clearly, and then not act,” said Karas, who said he has been waiting eagerly for a policy change since the prime minister’s June 2020 comments. “It makes it clear that there isn't any political will. And this should be concerning to all of us… I don't know what this looks like in another election… This might make the Liberals vulnerable on this file.”
Whether it remains a broken promise by the next time Canadians go to the polls remains to be seen, though with the target for a turnaround on approving this kind of policy change being 90 days, it’ll likely be at least a few months until anything changes, but as Trudeau’s past comments have shown, potentially much longer.
CTVNews.ca asked the Prime Minister’s Office (PMO) why Trudeau said last June that he was “very hopeful that we'll be able to announce the results and the change, very soon,” when the government nearly a year later has yet to even receive a request to do so, and whether Trudeau regrets signalling a change was imminent.
The PMO forwarded the request to Hajdu’s office, which said in a statement that the Liberals are still “working to bring an end to the discriminatory policy.”
