(June 1, 2009) On May 27, 2009, the Anti-Discrimination Tribunal of Tasmania, a division of the Australian island state's Magistrates Court, found that the Australian Red Cross policy of refusing blood donations from sexually active homosexual males was not discriminatory. The Tribunal was established in conformity with the Tasmanian Anti-Discrimination Act 1998. It may consist of one or more members and its primary task is to carry out inquiries into complaints about conduct prohibited by the Act (arts. 12 & 13, Anti-Discrimination Act 1998 (No. 46 of 1998), Tasmanian Legislation website, http://www.thelaw.tas.gov.au/tocview/index.w3p;cond=;doc_id=46%2B%2B1998
%2BAT%40EN%2B20090529000000;histon=;prompt=;rec=;term (last visited May 28, 2009)).
Petitioner Michael Cain had tried unsuccessfully to donate blood in 2004, in the city of Launceston. He was turned down after having replied in the affirmative to the question of whether in the past year he had “had male-to-male sex.” Cain brought a complaint against the policy before the Tribunal, on grounds that the Red Cross “discriminated against him as a homosexual and in regards to his lawful sexual activity.” (Christian Ehret, Australia Court Rules Red Cross Not Required to Accept Blood from Homosexual Donors, PAPER CHASE NEWSBURST, May 27, 2009, available at http://jurist.law.pitt.edu/paperchase/2009/05/australia-court-rules-red-
The Red Cross defended deferral of blood donations on grounds of homosexual sex because of the potential risk of an undiagnosed HIV infection. Cain contended that it is not homosexual, but rather unsafe sexual practices that pose the risk of HIV transmission, and that “homosexual men in stable, monogamous relationships who practice safe sex should be allowed to donate.” (Id.) Dr. William Leiss, a Canadian risk analysis expert, told the Tribunal that changing the screening process to one based on safe sexual practices, not sexual orientation, would increase the risk of infection; Cain's attorney, Peter Tree, countered that if such men were allowed to give blood, the risk of HIV infection of the Tasmanian blood supply “would be once every 5,769 years.” Leiss acknowledged that “that could be right, but such a screening system had not been researched.” (Gay Safe Sex Poses Low Risk to Blood Supply, Tribunal Hears, ABC NEWS, Aug. 15, 2008, available at http://www.abc.net.au/news/stories/2008/08/15/2337087.htm.)
The Tribunal found Cain's complaint to be unsubstantiated and the Red Cross's actions as not constituting direct or indirect discrimination under Tasmania's Anti-Discrimination Act 1998 (arts. 14 &15). (Ehret, supra.; Tasmanian Anti-Discrimination Complaint Against the Australian Red Cross Blood Service (AFAO Briefing Paper), Australian Federation of AIDS Organisations website, July 4, 2006, available at http://www.afao.com.au/library_docs/policy/AntiDiscriminationARCBS_July0
The Australian Red Cross applies a 12-month deferral of donations not only to persons who in the last 12 months have had male-to-male sex, but also to those who have engaged in sexual activity with partners who have used intravenous, recreational, non-prescription drugs; who have HIV, hepatitis B, hepatitis C, or HTLV; who have had treatment with clotting factors; or who have “ever thought they could be infected with HIV or have AIDS.” The same rule applies in addition to those who have engaged in sexual activity with a male who might be bisexual or with a male or female sex worker; to those who have a new sexual partner (since the last blood donation or in the last 12 months) who currently lives or has previously lived overseas; and to those who have been a male or female sex worker. (Frequently Asked Questions: Sexual Activity – Is There Any Kind of Sexual Activity That Will Affect My Ability to Donate Blood?, Australian Red Cross Blood Services website, http://www.donateblood.com.au/page.aspx?IDDataTreeMenu=88&parent=30 (last visited May 28, 2009).) The American Red Cross appears to impose similar types of restrictions. (HIV, AIDS, BLOOD ELIGIBILITY GUIDELINES,American Red Cross website, http://www.redcross.org/en/eligibility#hiv (last visited May 28, 2009).)