Gay blood donor: I will fight on

TASMANIAN GAY AND LESBIAN RIGHTS GROUP MR May 27

d donation campaigner vows to continue fight. Tribunal decision disappointing but step in the right direction. Call on Red cRoss to conduct gay blood donor trail

“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.”
– Michael Cain

Gay blood donation campaigner, Michael Cain, says he will not give up his fight for gay men who have safe sex to give blood, despite today’s decision by the Tasmanian Anti-Discrimination Tribunal upholding the current blanket gay blood ban, and has called on the Red Cross to conduct a trial of gay blood donation to determine its safety.

The Tribunal dismissed Mr Cain’s claim of 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 “the worst case scenario”.

Mr Cain said the Tribunal upheld almost all of his arguments for reform.

“I am pleased the Tribunal has agreed with my fundamental claim that their 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.”

“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.”

“The Red Cross’s absurd claims that all gay sex is very high risk because gay men are all sexually irresponsible and promiscuous are now officially dead and buried.”

Mr Cain said he will write to the Red Cross asking for a meeting to discuss a gay blood donation trial.

“Given the Tribunal’s conclusion that there are safe gay donors, its endorsement of further research, and the nation’s urgent need for more safe blood, I call on the Red Cross to conduct a trial to determine the safety of gay blood donation.”

“I will also continue to campaign against the gay blood ban, speaking out at every opportunity and helping people in other countries challenge their gay blood bans.”

“Most importantly, when more research emerges that backs up my case I will be straight back before the Tribunal.”

Although it agreed that some gay men who practise safe sex have a very low HIV risk, the Tribunal agreed with the Red Cross that donor deferral policy must “address broad categories of the population”.

Its conclusion was that there are different views among experts about levels of HIV risk associated with safe gay sex and that the Red Cross must therefore act on “the worst case scenario”.

For more information contact Michael Cain on 0400 734 798 or Tasmanian Gay and Lesbian Rights Group spokesperson, Rodney Croome, on 0409 010 668.

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Key quotes from today’s decision

The Tribunal agreed with Michael Cain that the gay blood ban has a negative impact on gay men.

“The current policy amounts to a disadvantage that is real, a matter of substance and not trivial.” (par 398)

The Tribunal agreed with Michael Cain that reform of the current policy would increase the amount of blood available for transfusion.

“One of the benefits of reform is an increase in the supply of blood due to an increase in the number of donors.” (par 334)

The Tribunal did not uphold Red Cross claims that gay men are sexually irresponsible and that gay monogamy is a “myth”.

“There has been quite a deal of attention given by the Red Cross to the practices within the MSM group…This attempt to apply data about the practices of some clearly unrepresentative cohorts within the MSM group to all members of the group, as a means of undermining the reliability and commitment of all male-to-male relationships lacks validity.” (par 376)

The Tribunal endorsed further review of the current policy.

“Ongoing critical review of the policy will ensure that our blood supply is and will continue to be as safe as it can be and ensure that if other viable options are indicated they will be assessed. New data, enhanced research and refined methods can be considered (and) will assist in maintaining public confidence in the blood supply.”

Regarding the key issue of the risk associated with gay blood donation the Tribunal wrote,

“The epidemiological evidence establishes that the blood of the majority of homosexuals does not pose a risk to the blood supply. Indeed, focussing on the risk posed by particular individuals rather than groups, there are some individuals who are homosexual whose blood would pose a less of a risk than the blood of some heterosexuals who are permitted to donate.” (par 381)

“However…the donor deferral policy must, as a matter of practicality, work on the basis of addressing broad categories of the population.” (par 381)

In assessing the risk of the “broad category” of gay men who have safe sex the Tribunal took heed of modelling by Sydney-based epidemiologist, Prof John Kaldor, which showed

“that the low risk MSM group poses a relative risk of HIV transmission that is still higher than high risk heterosexual male donors.” (par 384)

The Tribunal conceded that the Kaldor model “is based on some assumptions” about the number of MSM in the general population and the prevalence of HIV among MSM, to which there were “valid” objections from expert witnesses for Mr Cain (par 385-6). However, it concluded that

“the ethical principles that guide the Red Cross require it to take the ‘precautionary principle’, to take the pessimistic view that what can go wrong will go wrong” (par 386).

In summarising the medical case the Tribunal wrote,

“Mr Cain has demonstrated that the best case scenario could be correct, in which case the group to which he belongs, being those in monogamous relationships and having protected sex, may, according to some current, valid data present a relative risk that is lower than that shown in the (Kaldor) model. This observation amounts to a valid critique of the current system…but it is not an appropriate basis for amendment of the deferral policy.” (par 387)

In tribute to the efforts and integrity of Mr Cain, the Tribunal wrote,

“The review of the donor deferral policy that has been undertaken in these proceedings, as a consequence of Mr Cain’s sense of justice and altruistic motivations, have contributed to the beneficial process of review and scrutiny of the deferral policy. It remains for the Tribunal to mention that the responsible approach Mr Cain has taken in acknowledging the critical importance of the safety of the blood supply…as the foundation of his case, so that he only is advocating change if there is no increase in risk to the blood supply, has facilitated the Tribunal’s proper analysis of the issues…” (par 561)