In a case before the Ontario Superior Court this month, an Ottawa man is challenging the ban on blood donation by gay men. Currently, any man who has had sex with another man since 1977 is “indefinitely deferred” from giving blood. Not only is this ban unnecessarily broad, it does a disservice to the very people it is supposed to protect.

The reasoning behind the ban is that gay men in Canada account for 60 percent of HIV-positive people, and for nearly half of new infections. All blood collected by Canadian Blood Services is screened for HIV, but the justification for the indefinite deferral of gay men is that the virus is not immediately detectable after infection—it can be several weeks before it shows up on a blood test. Clearly, these are compelling arguments for caution.

Toronto sexual health clinics deal with the issue of detection by waiting three months after a risky sexual encounter to confirm a negative result. Blood agencies in some countries subject gay men and other high-risk groups to a six- or twelve-month deferral period after last sexual contact to make sure the results of screenings are accurate. So why have CBS and Health Canada refused to rethink the total ban?

Another option would be to amend the ban to focus more narrowly on behaviour.

HIV infection rates are higher among gay men, but you are not inherently more likely to wind up with HIV just as a consequence of being gay. You have to have actually engaged in unprotected sex with an infected partner. So why not accept blood from gay men who have not been sexually active for the last six months? Or who have not had unprotected sex? Or who have not had anal sex?

Perhaps CBS simply does not trust gay men to be honest about their activities, in which case we may as well ask why CBS thinks they can be trusted to honestly self-identify at all.

Kyle Freeman, the Ottawa man who launched the current challenge against CBS, claims that asking donors their sexual orientation on their questionnaire is a violation of their Charter rights. In a way though, this isn’t really a fight about queer rights.

An argument could—and has—been made that the policy unfairly portrays gay men in Canada as the harbingers of disease. Or that it spreads misinformation about HIV by implying that it is transmissible by any sexual contact including oral sex, whether you wear a condom or not. But it seems to me that the more pressing issue is about access to blood. CBS has a responsibility to people in need of blood transfusions to provide blood that is safe. But they also have a responsibility to, well, provide blood. Is eliminating every gay man in the country who’s had sex in the last 30 years from the donor pool, when we have the means to make sure that blood is safe, really in the best interests of patients?

Cate Simpson is a freelance journalist and the web editor for Shameless magazine. She lives in Toronto.