Bad Blood: Donor Discrimination in Canada

Bad Blood: Donor Discrimination in Canada Jack Stephenson In the early hours of the morning on June 28th, 1969, a group of plainclothes police officers conducted a routine raid on the Stonewall Inn of Greenwich Village, New York City.1 A struggle ensued as officers escorted those they presumed to be men dressed as women to police vans.2 Rather than dispersing, the removed patrons began shouting words of encouragement to the apprehended bar-goers in an unprecedented show of support.3 A group of activists leading the crowd began pelting police officers with coins, bottles, and bricks in an effort to allow the detained patrons to escape custody.4 As the astounded group of officers retreated into the bar, rioters began to celebrate what would later be known as the first major stand for LGBT rights.5 In the years that followed, the push for LGBT rights gained momentum. In Canada, the repeal of the discriminatory section 159 of the criminal code6 was closely followed by the Civil Marriage Act, recognizing gay marriage in Canada.7 However, despite all of these monumental steps in the fight for LGBT rights, gay and bisexual men are still faced with discrimination in the donation of blood and blood products. AIDS (Acquired Immune Deficiency Syndrome) and the concentration of affected individuals in the gay community is often cited as the reason men who have sex with men (MSM) are not eligible to donate blood in Canada.8 In the early 1980’s rare cancers and aggressive infections began developing in otherwise healthy gay men, confusing doctors and spurring anti-gay prejudice in North America.9 Health professionals began referring to this deterioration of the immune system as GRID, or ‘Gay-Related Immune Deficiency’.10 Many theories about the transmission of GRID circulated, but there was not yet any scientific evidence to support the misguided theories

1 Marotta Toby, “What Made Stonewall Different?,” The Gay and Lesbian Review Worldwide 13, no. 2 (2006): 33. 2 Ibid. 33. 3 Ibid. 33. 4 Ibid. 33. 5 Ibid. 33. 6 Department of Justice, “An Act Related to the Repeal of Section 159 of the Criminal Code,” Technical Paper: Bill C-36, Protection of Communities and Exploited Persons Act, December 15, 2016, Date of Access January 22, 2019, https://www.justice.gc.ca/eng/csj-sjc/pl/s159/qa_s159- qr_s159.html. 7 Canada, Department of Justice, Bill C-38: The Civil Marriage Act, Ottawa: Dept. of Justice Canada, 2005. 8 “About Men Who Have Sex with Men,” How Donation Works | Canadian Blood Services, Date of Access January 21, 2019, https://blood.ca/en/msm/about-men-who-have-sex-with-men. 9 “The Early Days of AIDS | CBC Radio,” CBCnews, November 27, 2014, Date of Access January 23, 2019, https://www.cbc.ca/radio/rewind/the-early-days-of-aids-1.2837672. 10 Ibid.

88 spun by the terrified public.11 For a long time, there was not even a reliable test to determine if someone had been infected.12 The term GRID was eventually dropped in favour of AIDS or ‘Acquired Immune Deficiency Syndrome’ after the discovery of an individual infected through a blood transfusion in 1982.13 Human Immunodeficiency Virus (HIV), the virus responsible for the onset of AIDS was eventually isolated in 1984, but the damage had already been done.14 Between 1980 and 1985, at least 2000 Canadians were infected through blood transfusions, often from donors who were unaware that they themselves were infected.15 At this point in time, with so little information and no test to determine who was infected, the safest course of action was to bar high-risk individuals from donating blood. After the successful isolation of the human immunodeficiency virus in 1984, researchers began working on a method to reliably detect HIV in blood samples.16 During the AIDS crisis, the US Department of Health and Human Services gave top priority to the implementation of a test capable of detecting infected donations in the national blood supply.17 This ambitious endeavour succeeded in the spring of 1985, when the scientific journalAnalytical Chemistry released a screening test to detect the presence of the virus.18 The test employed a technique called “Enzyme Linked Immunosorbent Assay” or “ELISA.”19 The test functions on the principle that anti-HIV antibodies will be present in the blood of someone who is infected with HIV. Broadly put, blood samples are tested against specific antigens that will be bound by the anti-HIV antibodies, indicating that someone is HIV positive. If no antibodies are bound to the antigen, the blood sample is HIV negative.20 As time passed, researcher’s increased understanding of HIV resulted in more reliable and sophisticated tests to assess donated blood. Furthermore, this advancement in HIV/AIDS medical research has led to the development of preventative and post-exposure medications to significantly lower the risk of contracting HIV through intercourse. Preventative medications such as pre-exposure prophylaxis (PrEP) can be taken on a regular basis to decrease

11 “An Epidemic of AIDS, an Epidemic of Fear - CBC Archives,” CBCnews, Date of Access January 23, 2019, https://www.cbc.ca/archives/entry/an-epidemic-of-aids-an-epidemic-of-fear. 12 Ibid. 13 “The early Days…” 14 Ibid. 15 Ibid. 16 Ibid. 17 “AIDS Antibody Screening Test,” Analytical Chemistry 57, no. 7 (June 1985): 773, doi:10.1021/ ac00284a727. 18 Ibid. 773. 19 “AIDS Antibody Screening Test,” Analytical Chemistry 57, no. 7 (June 1985): 773, doi:10.1021/ ac00284a727. 20 Ibid. 776.

89 the likelihood of contracting HIV, with high efficacy.21 Similarly, post-exposure prophylaxis (PeP) is offered to those who believe they have been exposed to HIV within the last 72 hours, and can reduce the risk of infection by as much as 80%.22 Both of these medications are now available to men who have sex with men, meaning that now more than ever, these individuals have the necessary resources to protect themselves against infection. Despite these medical advancements, men who have sex with men are still prohibited from donating blood by Canadian Blood Services.23 In response to Ontario’s blood crisis in 2016, the criteria barring men who have sex with men from donating blood was lowered from five years since their last sexual contact, to one year.24 Regardless of the implementation of these policies, Canadian Blood Services still receives between one and eight HIV positive blood donations per year, which are quickly detected and removed from the supply25. There is a brief window after initial contraction where HIV is undetectable in blood, but modern testing practices have significantly narrowed this window.26 The waiting period to donate blood or blood products after sexual contact could be lowered to 10 days without placing recipients of blood transfusions at any additional risk.27 Although it is an improvement over five years, the one year waiting period is still a wholly unnecessary obstacle to place in the way of potential donors. Canadian Blood Services has effectively banned the entire demographic of MSM from donating blood in Canada, despite fail-safes and redundancies. These harmful and discriminatory policies go beyond the donation of blood and blood products, reaching the federal level in the Ministry of Health. In the assessment of eligibility for organ donation, men exhibiting evidence of sexual contact with other men can be excluded from consideration on grounds of risk of transmission.28 The mandatory waiting period after sexual contact for only MSM signifies the assumption that all gay and bisexual men lead promiscuous and unsafe sexual lifestyles in comparison to any

21 “PrEP | HIV Basics,” HIV/AIDS, November 01, 2018, Date of Access January 21, 2019, https:// www.cdc.gov/hiv/basics/prep.html. 22 “Post-exposure Prophylaxis to Prevent HIV Infection,” World Health Organization, December 04, 2014, Date of Access January 23, 2019, https://www.who.int/hiv/topics/prophylaxis/info/en/. 23 “About Men Who…” 24 Ibid. 25 “Backgrounder: Donor Testing - Human Immunodeficiency Virus (HIV),” How Donation Works | Canadian Blood Services, Date of Access January 21, 2019, https://blood.ca/en/media/ backgrounder-donor-testing-human-immunodeficiency-virus-hiv. 26 Ibid. 27 Ibid. 28 Ministry of Health. “Safety of Human Cells, Tissues and Organs for Transplantation,” Guidance Document for Cell, Tissue and Organ Establishments, https://www.canada.ca/content/dam/ hc-sc/documents/services/drug-health-product-review-approval/biologics-radiopharmaceuticals- genetic-therapies/regulatory-initiatives/cells-tissues-organs/guidance-document-safety-human- cells-tissues-organs-transplantation-eng.pdf.

90 given heterosexual donor. These policies are not only harmful to the LGBT community, they also deprive patients in need of blood and blood products. If a waiting period after sexual contact is absolutely essential to the safety of recipients, it should not be limited to only MSM. In an age of equality and scientific knowledge, these antiquated and prejudiced policies benefit neither the LGBT community, or the patients in need.

91 Bibliography “About Men Who Have Sex with Men.” How Donation Works | Canadian Blood Services. Date of Access January 21, 2019. https://blood.ca/en/msm/about-men-who-have-sex-with-men. “AIDS Antibody Screening Test.” Analytical Chemistry 57, no. 7 (June 1985): 773-78. doi:10.1021/ac00284a727. Altman, Lawrence K. “New Homosexual Disorder Worries Health Officials.” The New York Times, May 11, 1982. “An Epidemic of AIDS, an Epidemic of Fear - CBC Archives.” CBCnews. Date of Access January 23, 2019. https://www.cbc. ca/archives/entry/an-epidemic-of-aids-an-epidemic-of-fear. “Backgrounder: Donor Testing - Human Immunodeficiency Virus (HIV).” How Donation Works | Canadian Blood Services. Date of Access4 January 21, 2019. https://blood.ca/en/media/ backgrounder-donor-testing-human-immunodeficiency-virus-hiv. Canada. Department of Justice. Bill C-38: The Civil Marriage Act. Ottawa: Dept. of Justice Canada, 2005. Department of Justice. “An Act Related to the Repeal of Section 159 of the Criminal Code.” Technical Paper: Bill C-36, Protection of Communities and Exploited Persons Act. December 15, 2016. Date of Access January 22, 2019. https://www.justice.gc.ca/eng/csj-sjc/pl/s159/qa_s159-qr_s159.html. “HIV/AIDS.” World Health Organization. Date of Access January 21, 2019. https://www.who.int/newsroom/fact-sheets/detail/hiv-aids. Marotta, Toby. “What Made Stonewall Different?” The Gay and Lesbian Review Worldwide 13, no. 2 (2006): 33. Ministry of Health. “Safety of Human Cells, Tissues and Organs for Transplantation.” Guidance Document for Cell, Tissue and Organ Establishments. https://www.canada.ca/content/ dam/hc-sc/documents/services/drug-health-product-review- approval/biologics-radiopharmaceuticals-genetic-therapies/ regulatory-initiatives/cells-tissues-organs/guidance-document- safety-human-cells-tissues-organs-transplantation-eng.pdf. O’Shea, Christopher D. “Before Stonewall: Activists for Gay and Lesbian Rights In Historical Context.”Archives of Sexual Behaviour 36, no. 2 (April 2007): 329-30. Picano, Felice. “The Remains of the Night: Six Observers: Felice Picano Talks with Eyewitnesses to the Stonewall Riots.” The Gay and Lesbian Review Worldwide 22,no. 4 (2015): 29.

92 “Post-exposure Prophylaxis (PEP).” World Health Organization. May 09, 2018. Date of Access January 21, 2019. https:// www.who.int/hiv/topics/prophylaxis/en/. “Post-exposure Prophylaxis to Prevent HIV Infection.” World Health Organization. December 04, 2014. Date of Access January 23, 2019. https://www.who.int/hiv/topics/prophylaxis/info/en/. “Pre-exposure Prophylaxis.” World Health Organization. August 16, 2018. Date of Access January 21, 2019. https://www. who.int/hiv/topics/prep/en/. “PrEP | HIV Basics.” HIV/ AIDS. November 01, 2018. Date of Access January 21, 2019. https://www.cdc.gov/hiv/basics/prep.html. Prower, Tomas. “Between the Greeks and Stonewall.” The Gay and Lesbian Review Worldwide 25, no. 6 (November/December 2018): 15-17. “The Early Days of AIDS | CBC Radio.” CBCnews. November 27, 2014. Date of Access January 23, 2019. https://www.cbc.ca/radio/rewind/ the-early-days-of-aids-1.2837672. “Why the HIV Epidemic Is Not over.” World Health Organization. Date of Access January 21, 2019. https://www.who.int/hiv-aids/latest-news-and-events/why-the-hiv- epidemic-is-not-over.