Canadian Blood Services is legally allowed to ban men who have sex with men from donating blood, an Ontario court has found. Gay rights groups are furious with the decision.

In a ruling Thursday, the Ontario Superior Court dismissed a constitutional challenge from a man who tried to fight the policy. The court decided that the law does not give someone the right to donate blood. It also noted that the Charter of Rights does not apply to the blood agency's policies, because it is not a government entity.

The ruling stems from a case that began with Canadian Blood Services suing a gay man named Kyle Freeman, who lied about his sexual status when he donated blood several times between 1990 and 2002. Once the agency learned that Freeman had lied on his questionnaires, they sued.

Freeman argued he lied because the policy banning gay men from donating wasn't scientifically justified and violated his rights. He launched a counterclaim under the Charter.

But on Thursday, the court dismissed the challenge, finding Freeman liable for $10,000 for negligent misrepresentation.

The judge in the case, Justice Catherine Aitken, did note in her written decision that gay and bisexual men may feel "a loss of dignity, a feeling of marginalization, a sense of disappointment, and a sense of injustice" when denied the opportunity to give blood.

But she ruled that the impact of that injustice is not "in the same league" as a blood recipient being asked to accept lower safety standards.

Canadian Blood Services chief Graham Sher said "we are reassured that the court has confirmed that our policy, with respect to men who have sex with men, is not discriminatory."

He added: "blood donation is not a right, it's a privilege we try to extend to as many Canadians as possible."

Anger over ruling

Egale Canada spokesperson Helen Kennedy expressed disappointment with the decision, saying, "The negative consequences this ruling has on Charter rights are enormous."

Monique Doolittle-Romas, the executive director of the Canadian AIDS Society (CAS), says it's "disturbing" that the court framed the case as a "contest" between safety and gay rights.

CAS Board Vice-Chair Jeffrey Keller added in a statement: "In the end, this simply means that groups, such as CAS, [Canadian Federation of Students] and Egale, will continue to apply pressure until CBS relents and changes its outdated policy. It's a divisive policy that turns away many young adults who are dissatisfied with it, and in the process, curtails Canada's blood supply."

"We will keep fighting for change that will produce an improved screening question that respects both the safety of the blood supply and human rights."

Canadian Blood Services requires prospective blood donors to complete questionnaires ahead of their donation about their medical history and potentially harmful behaviour.

Intravenous drug users, people who may have been exposed to Creutzfeld-Jakob disease (mad cow disease), people who have exchanged money for sex or drugs are all permanently banned. Currently, men who had sex with men from 1977 onwards (the year estimated as the start of the AIDS epidemic) also face "indefinite deferrals" from donations.

Earlier this year, two doctors wrote in an article in the Canadian Medical Association Journal that Canada's ban on donations from homosexual men is outdated and unfair.

Dr. Mark Wainberg, the head of the McGill University AIDS Centre, and Dr. Norbert Gilmore, of the McGill Centre for Medicine, Ethics and Law, argued that fears of the potential for HIV transmission are unfounded, because it is almost impossible for today's HIV tests to produce false results.

They also argued that a better policy would be to allow donations only from gay men in long-term, monogamous relationships. Those with multiple sex partners should still be barred, just as heterosexuals with multiple partners currently face one-year deferrals, they argued.

Josephine Sirna, who was infected with Hepatitis C after receiving a blood transfusion, said that keeping the public safe is paramount.

"They're taking that precaution to keep me and my health as safe as possible," she said Thursday.

Canada's blood donation system was tainted in the 1980s after infections became widespread because of Hepatitis C. The government paid out hundreds of millions of dollars in response to the scandal.

With a report from CTV's Roger Smith