Gay blood donor's complaint against Red Cross dismissed
Posted: Tue Jun 02, 2009 4:34 pmhttp://www.news.com.au/story/0,27574,25546515-29277,00.html
A GAY man refused permission to donate blood has had his long-running, landmark discrimination complaint dismissed.
The Australian Red Cross refused to accept Michael Cain's blood at Launceston in October 2004 because he had answered yes to a screening question about having had male-to-male sex in the previous 12 months.
Mr Cain, 26, maintains that homosexual sex is a lawful activity and those who practise it safely should not be excluded from giving blood.
In August 2005, he lodged a complaint to that effect with the Tasmanian Anti-Discrimination Tribunal.
Almost four years later, the tribunal on Wednesday handed down its ruling.
"The tribunal finds that the complaint is unsubstantiated and it is dismissed," its ruling says.
The tribunal found that the Red Cross is bound to keep risks to the blood supply as low as possible.
It rejected Mr Cain's alternative of allowing low-risk gays to donate blood, although it acknowledged a lower HIV transmission risk with this group.
"In reality, the reason for the deferral policy is the fact that people who engage in male-to-male sex have, as a group, a high risk of HIV transmission," the tribunal said.
Dr Philippa Hetzel, from the Australian Red Cross Blood Service, said it did not defer potential donors because of sexual preference.
The 12-month deferral stems from evidence on infection risk during the undetectable window period during which a virus such as HIV or Hepatitis C can exist in blood but not show up in scientific testing.
"We know this is a very difficult matter for many people in the community, and we wish to reassure them that our main concern is the safety of the blood supply," Dr Hetzel said.
Mr Cain said he claimed discrimination on the basis that the Red Cross has a legal obligation to ban gay donors and because, in the absence of conclusive data on the risk associated with low-risk gay sex, the Red Cross must act on a worst case scenario basis.
"I am pleased the tribunal has agreed with my fundamental claim that there are monogamous, safe, gay men who have a lower HIV risk than some of the straight people who can currently give blood," Mr Cain said.
"It's disappointing that they have not followed through on this conclusion by allowing these men to donate, but it's a step in the right direction that I and other people will build on it.
"This was a knife-edge decision in which the tribunal erred on the side of caution, but given how much of my case it agreed with, I am confident the next time this matter goes to court the outcome will be a new policy."
Mr Cain says he will not give up his fight for gay men who have safe sex to give blood.
He is calling on the Red Cross to conduct a trial of gay blood donation to determine its safety.
A GAY man refused permission to donate blood has had his long-running, landmark discrimination complaint dismissed.
The Australian Red Cross refused to accept Michael Cain's blood at Launceston in October 2004 because he had answered yes to a screening question about having had male-to-male sex in the previous 12 months.
Mr Cain, 26, maintains that homosexual sex is a lawful activity and those who practise it safely should not be excluded from giving blood.
In August 2005, he lodged a complaint to that effect with the Tasmanian Anti-Discrimination Tribunal.
Almost four years later, the tribunal on Wednesday handed down its ruling.
"The tribunal finds that the complaint is unsubstantiated and it is dismissed," its ruling says.
The tribunal found that the Red Cross is bound to keep risks to the blood supply as low as possible.
It rejected Mr Cain's alternative of allowing low-risk gays to donate blood, although it acknowledged a lower HIV transmission risk with this group.
"In reality, the reason for the deferral policy is the fact that people who engage in male-to-male sex have, as a group, a high risk of HIV transmission," the tribunal said.
Dr Philippa Hetzel, from the Australian Red Cross Blood Service, said it did not defer potential donors because of sexual preference.
The 12-month deferral stems from evidence on infection risk during the undetectable window period during which a virus such as HIV or Hepatitis C can exist in blood but not show up in scientific testing.
"We know this is a very difficult matter for many people in the community, and we wish to reassure them that our main concern is the safety of the blood supply," Dr Hetzel said.
Mr Cain said he claimed discrimination on the basis that the Red Cross has a legal obligation to ban gay donors and because, in the absence of conclusive data on the risk associated with low-risk gay sex, the Red Cross must act on a worst case scenario basis.
"I am pleased the tribunal has agreed with my fundamental claim that there are monogamous, safe, gay men who have a lower HIV risk than some of the straight people who can currently give blood," Mr Cain said.
"It's disappointing that they have not followed through on this conclusion by allowing these men to donate, but it's a step in the right direction that I and other people will build on it.
"This was a knife-edge decision in which the tribunal erred on the side of caution, but given how much of my case it agreed with, I am confident the next time this matter goes to court the outcome will be a new policy."
Mr Cain says he will not give up his fight for gay men who have safe sex to give blood.
He is calling on the Red Cross to conduct a trial of gay blood donation to determine its safety.
