A gay man is taking the federal government to court, challenging the constitutionality of a policy restricting gay and bisexual men from donating to sperm banks in Canada, CTV News has learned.
“[It’s] like you’re undesirable because of your gayness as a donor … It feels like such an arbitrary rule,” said Aziz M, the man who is pushing to change the rules. Out of concern for his privacy, CTV News has agreed not to use his full name.
Currently, a Health Canada directive prohibits gay and bisexual men from donating sperm to a sperm bank unless they’ve been abstinent for three months or are donating to someone they know.
For example, it stops any gay man who is sexually active from donating, even if they are in a long-term monogamous relationship.
Under the “Safety of Sperm and Ova Regulation,” sperm banks operating in Canada must deem these prospective donors “unsuitable,” despite all donations being subject to screening, testing and a six-month quarantine before they can be used.
“Why I decided to take this to court is because of that feeling of discrimination,” said Aziz.
Aziz and his lawyers are challenging the directive—filed with the Superior Court of Ontario in January—on the basis that it violates the right to equality in the Charter of Rights and Freedoms.
This case is seeking to strike out the provision in the policy that specifically applies to men who have sex with men, according to the application commencing litigation.
The case has caught the attention and has the financial backing of Canada’s Court Challenges Program, an independent organization that supports individuals bringing cases related to constitutional rights that are of national significance.
The filing alleges that the current policy “perpetuates stereotypical attitudes and prejudices against gay and bisexual men, including false assumptions about their health, their sexual practices, and their worthiness to participate in child conception.”
While the directive does not mention transgender or non-binary donors, the policy also applies to individuals who may not identify as male but would be categorized as men under the directive.
In an interview with CTV News, Gregory Ko, co-council on the case, said the policy goes to the heart of the many barriers that exists for LGBTQ2S+ Canadians looking to have children.
“It is not uncommon for a lot of gay and lesbian couples to rely on sperm donors within the community, and this directive explicitly puts a barrier, in addition to all the other barriers that exist for queer families, in having children,” Ko said.
MAN FIGHTING POLICY HAS DONATED BEFORE
Aziz M., the man who is taking the federal government to court. Out of concern for his privacy, CTV News has agreed not to use his full name.
In Canada, there are two streams for sperm donation. One involves sperm donations made to a sperm bank for general use, which is considered the “regular process.”
The other is known as the “direct donation process” and involves sperm donations between a donor to a recipient who are known to one another. In these cases, sexually active gay and bisexual men can donate so long as the recipient signs a waiver.
This case focuses on the first stream.
Aziz is uniquely positioned in bringing this constitutional challenge, as prior to coming out as a gay man, he donated to a sperm bank in Toronto several times between 2014 and 2015 without issue.
After undergoing the rigorous screening and testing that donors in Canada are subject to under the Assisted Human Reproduction Act, which includes pre- and post-donation infectious disease testing, his sperm was made available to the public.
As a result, a lesbian couple was able to have a daughter, whose life Aziz now plays a role in.
“We go out [to] museums and parks, and we play. There’s a lot of joy, a lot of meaning in it,” he said. “We’re kind of navigating this … family-like relationship, and what do we call each other?”
Because he found this past donation a meaningful experience, he encouraged his friends to donate, only to realize that their donations wouldn’t be accepted.
“It made them feel bad, and it made me feel embarrassed as well,” he said.
Aziz said his motivation in bringing this case is that he wants to be able to donate again, a desire compounded by his awareness of this country’s donor shortage.
“I would be really happy and honoured if this makes things move along and … makes people recognize the equality between … everybody, regardless of their gender identity or sexual orientation,” he said.
MINISTER HAS POWER TO CHANGE: LAWYER
Gregory Ko, co-council on the case and partner with Kastner Lam LLP. (CTV News)
The lawsuit argues that the federal health minister has the power to issue a directive to change the policy as it applies to men who have sex with men, just as the Liberal government did a few years ago.
The government brought forward the current policy in 2019—requiring gay and bisexual men to observe a three-month deferral period before being able to donate—and it came into effect in February 2020.
This change was a marked update from what had been a lifetime ban dating back decades stemming from concerns over HIV transmission.
“Our view is that the minister of health has discretion to amend this directive. It is a directive that comes from the minister’s office and from the ministry of health itself. And so, barring some internal processes, our view is that this is a policy that can be amended swiftly,” Ko said.
Ko, who is a partner at law firm Kastner Lam LLP and previously was involved in a case challenging the now-eliminated federal blood ban, says the sperm donation policy echoes the language used by Health Canada that long prohibited men who have sex with men from donating blood.
After years of successive updates, in April 2022 Health Canada approved the Canadian Blood Services submission to eradicate what was then a three-month deferral period. This allowed the national blood donation organization to begin using a behaviour-based screening system for all donors, where risk factors are screened on an individual basis, regardless of gender or sexuality.
This new policy came into effect across most of the country in September 2022, and Hema-Quebec followed suit in December 2022.
‘INDEFENSIBLE BASED ON THE STATE OF THE SCIENCE’
What is different about sperm donation, Ko says, is that there is no third party, such as Canadian Blood Services, involved that the federal government could point to and say that it has limited authority to rescind the policy or intervene. That was an approach the Liberals took during the blood donation saga.
“We sincerely believe that the courts will agree that this is a clear breach of the right to equality and is an indefensible based on the state of the science,” Ko said.
President of the Canadian Fertility and Andrology Society Dr. Sony Sierra says that while the risk of transmission is “very small” given the screening and universal precautions in place, a risk still exists.
“It can be taken as stigmatizing. It is, but we have to also understand that our concern also involves the intended recipient, and therefore that intended recipient needs to be cared for and counselled regarding all risk. And that’s our intention in practicing in accordance with these guidelines,” Sierra said. “As our science improves with respect to transmission and actual risk as opposed to theoretical risk, I would hope that those guidelines become even more inclusive.”
Prime Minister Justin Trudeau and his government faced considerable pressure from the LGBTQ2S+ community after pledging for years to end the blood ban. When it was lifted, he cheered the end of what he said was a “discriminatory and wrong” policy.
The New Democrats say the federal government has failed to follow up on the lifting of the blood ban with similar changes to the regulations for sperm donation.
“There’s never been any science behind the ban on gay men donating sperm, none whatsoever … People tell me they’re working on it, but they’ve been telling me they’ve been working on this for over five years,” said NDP MP Randall Garrison, the party’s critic for justice and LGBTQ2S+ rights.
“It’s this case in the queer community that we’ve always had to fight for our rights. We’ve never had anything handed to us on a platter,” Garrison said. “It’s just disappointing at this day and age that the government doesn’t recognize their need to act.”
Asked to respond to the court challenge, Health Minister Jean-Yves Duclos declined to comment. Justice Minister David Lametti’s office directed CTV News to the justice department, which directed questions to Health Canada.
In a statement to CTV News, the federal health agency said that it is committed to non-discriminatory policies, pointing to the direct donation process it said was ” specifically created” with the LGTBQ2S+ community in mind.
Tammy Jarbeau, senior media relations adviser for Health Canada, told CTV News that the purpose of the restrictions are to “reduce the risks to human health and safety,” and that that the current sperm donor screening criteria was informed by the available scientific and epidemiological data, as well as national standards.
Health Canada said it will look to ensure the regulations continue to reflect the latest advances in science and technology, and given the recent changes to the screening criteria for blood donors, it “will explore whether similar updates may be appropriate” in the context of sperm donation.
“Health Canada is aware that an application has been filed… and is currently reviewing the application,” said Jarbeau, adding that the agency’s response will “be provided in the course of the litigation. We cannot comment further at this time.”
With files from CTV National News producer Rachel Hanes
Toronto , On – “Small Talk” by Canadian pop star, Isla-Maria drops October 25th. “Small Talk” follows the singer’s recent R&B/Soul single ‘Silver Shoes” and the self-penned single ‘Attention Seeking’ that soared to the #1 position on the aBreak58 Playlist. The hit single garnered Isla-Maria audience and industry praise at home and internationally. The music industry has taken notice of the young pop singer for her authenticity and the heartfelt connect too her music. And Isla-Maria’s star continues to rise. The pop teen has just moved on to the third round of Auditions for Season 23’s American Idol.
Isla-Maria was born in the small town of Bracebridge, Ontario. From the age of three her talent was obvious and her intent unwavering. She was encourged by everyone who heard her sing. The singer/songwriter took that encouragement and never looked back. The artist has appeared in musical theatre, competitive dance and concerts around the country. Isla-Maria embarked on the Boys of Summer Tour, taking the stage in major cities across the USA. She has also performed at Canadian Music Week in Toronto and Shake the Lake Music Festival in Bala, Ontario. The award-winning pop singer is determined to show her personal style with the same passion and confidence shown in her performances and in the studio. Her song writing ability contributes to her identity as the kind of independent artist she strives to be. Isla-Maria fearlessly pushes boundaries performing songs of love, heartbreak and the roller coaster of emotions that define teenage existence. The multi- talented artist captures the fearless honesty of youth with the soul of an artist far beyond her age.
Isla- Maria…. Hear the Voice.
“Small talk” by Isla- Maria drops, October 25th on all major music platforms. Hear the voice that made it to Season 23 American Idol Auditions.
Available now:
Silver Shoes Music Video – https://youtu.be/G4RV8b5Cfh4?si=FR0zesqR_PpqIoQh
OTTAWA – The minister of mental health and addictions says there are not enough beds in jurisdictions across the country to support involuntary treatment for addictions and mental health.
Ya’ara Saks says health care is under provincial jurisdiction, and that it’s up to the provinces “to outline the policies that they see fit.”
But before they have discussions about compulsory care, she says they need to ensure adequate treatment services are in place.
Conservative Leader Pierre Poilievre said Thursday he’s in favour of mandatory, involuntary drug and psychiatric treatment for kids and prisoners who are found to be incapable of making decisions for themselves.
Compulsory care for mental health and addictions is being contemplated or expanded in several provinces as communities struggle to cope with a countrywide overdose crisis.
Poilievre says he’s still researching how mandatory treatment would work in the case of adults.
This report by The Canadian Press was first published Oct. 11, 2024.
OTTAWA – Former public safety minister Bill Blair told a federal inquiry Friday he had no knowledge about delays in approving a spy service warrant in 2021 that may have included references to people in his own government.
A commission of inquiry into foreign interference has heard that it took 54 days for the Canadian Security Intelligence Service warrant application to be approved by Blair.
The average turnaround time for such applications is four to 10 days.
Michelle Tessier, CSIS deputy director of operations during the period, told the inquiry in previous testimony there was frustration with the delay, though there was no concern about interference of any sort or pushback from the minister’s office.
In his testimony, Blair — who is now minister of national defence — said the existence of the warrant wasn’t brought to his attention until he saw an entry in his calendar that he would need to be briefed on a confidential matter by CSIS.
“It was indicated on my calendar it was for the purposes of a warrant, but no information was provided in a non-secure setting about what that warrant was about,” Blair told the commission in his testimony Friday.
He didn’t know about the content of the warrant until he got that briefing, 54 days after the CSIS director and deputy public safety minister asked for his authorization. He signed it the same day.
A past report in the Globe and Mail and a lawyer at the inquiry have suggested the subject of the warrant was Michael Chan, an influential Liberal and former Ontario minister. But federal officials have refused to confirm who CSIS hoped to surveil through the warrant, citing national security concerns.
This week, Blair’s former chief of staff Zita Astravas faced questions about whether she tried to delay the warrant in order to protect connections in the Liberal government and party.
Blair’s chief of staff was briefed about the situation 13 days after the initial request for the minister’s approval was made, but Blair said no information about that briefing was passed on to him.
Blair said he never felt conflicted about approving the warrant, he simply didn’t know it existed.
“I can’t approve something I didn’t know anything about,” the minister told the inquiry.
“No one suggested to me that there were any difficulties bringing those matters forward to me in a proper way.”
Blair said he still doesn’t know why it took 54 days for the warrant to come to his attention.
Once he got the information, he said he didn’t share any information with the prime minister, the prime minister’s office, or anyone outside of the secure briefing.
The commission of inquiry’s latest hearings are looking at the ability of federal agencies to identify and counter foreign interference. A final report is due by the end of the year.
This report by The Canadian Press was first published Oct. 11, 2024.
Aziz M., the man who is taking the federal government to court. Out of concern for his privacy, CTV News has agreed not to use his full name.
Gregory Ko, co-council on the case and partner with Kastner Lam LLP. (CTV News)
