I also blogged on the topic about a year ago… the ruling still raises more questions than it answers in many ways: http://phendrana.ca/?p=1052.
Asking some form of the question is important (I think Quinn’s version could probably work), if only as a way of highlighting to the person doing the testing that they should be extra cautious. Human error should be expected and batching blood into risk categories is a way of reducing the likelihood of the error by flagging the blood as coming from a high risk group.
That said, this case was never going to win. Sure, it’s discriminatory, but neither the Charter nor the Human Rights Act covers something like giving blood. The Charter refers to equal “protection and benefit” under the law, but it’s hard to argue that giving blood is either - what is the benefit that one accrues by giving away blood? The HRA covers any “service” which giving blood may constitute, but in truth you can still give the blood. There’s nothing to compell them to use it, which is the issue. Fundamentally, there isn’t a rights issue at play here.
It’s stupid public policy to just dump blood that could be perfectly good, but the issue is about balancing discrimination with liability and if CBS genuinely believes that this helps reduce that liability, then one has to sort of live with it. I suspect they’re being overly cautious but this is also the organization that was born from the Hepatitis-C scandal (resulting in $2.5B in settlements) so we can hardly blame them. Regardless of the policy’s likely stupidity, however, I just don’t see the basis on which a right is claimed.
I would argue that the correct solution would be to change the question to “have you had anal intercourse in the last ____ years” (because, obviously, people who aren’t gay sometimes also like it in the butt) not “have you had sex with another man in the last ____ years,” but it’s worth noting that the reasoning behind this is because your risk of contracting HIV when you’re on the receiving end of anal sex is something like 10-34x higher than from penile-vaginal intercourse for men and 5-17x higher for women.
As for the comments, it’s the National Post… this is a newspaper whose weekly hockey humour column regularly draws outraged comments from morons who didn’t realize they were reading a 1000-wd joke. Of course they’re retarded.
“An Ottawa judge has sided with Canadian Blood Services in a lawsuit against a gay man who counter-sued the blood-donation agency, accusing them of violating his and other gay men’s charter rights by asking the “discriminatory” question about whether they have ever had sex with a man since 1977.”
Almost as disgusting as the story itself are the comments. How is it that it is 2010, and people still have such grossly out dated misconceptions about HIV/Aids?