Block Exclusion On Blood Donation Past Times Gay Too Bisexual Men: A Disappointing Cjeu Ruling
November 26, 2018
Edit
Alina Tryfonidou, Associate Professor inwards European Union Law, School of Law, University of Reading
In a much awaited judgment delivered before this calendar week inwards Case C-528/13 Léger, the Court of Justice ruled that permanent Member State bans on the donation of blood yesteryear gay as well as bisexual men which are based but on the fact that they had had sexual relations with some other man, may, inwards for certain circumstances, move justified yesteryear the bespeak to ensure a high score of wellness protection. Below, I volition explicate why this is a disappointing ruling which may, fairly, discipline the Court to accusations of, at best, non going far plenty inwards the protection of LGB rights and, at worst, deep-seated homophobia. Before exploring the reasons behind these accusations, nonetheless, I shall summarise the legal as well as factual background to the representative as well as the primary parts of the Court’s judgment.
The Law
In monastic enjoin to minimise whatever run a hazard of transmission of infectious diseases every bit a lawsuit of blood transfusion, Directive 2002/98 (‘the 2002 Directive’) sets standards of character as well as security for the collection, testing, processing, storage as well as distribution of human blood as well as blood components. The higher upwards musical instrument is implemented yesteryear Directive 2004/33 (‘the 2004 Directive’), which, inwards its Annex III, sets out the criteria for excluding for certain categories of persons from blood donations: Point 2.1 of the Annex provides that a permanent ban tin move imposed on, inter alia, ‘persons whose sexual behavior puts them at high run a hazard of acquiring severe infectious diseases that tin move transmitted yesteryear blood’ (‘the 2.1 category’), whilst Point 2.2.2 of the same Annex, provides that a temporary ban may move imposed on ‘persons whose behavior or activeness places them at run a hazard of acquiring infectious diseases that may move transmitted yesteryear blood’ (‘the 2.2.2. category’). The contested French mensurate – L’Arrêté du 12 Janvier 2009 fixant les critères de alternative des donneurs de sang (‘the Decree’) – which was adopted inwards 2009 inwards implementation of the 2004 Directive, as well as which, every bit its holler suggests, sets the criteria for alternative of blood donors inwards French Republic – provides a permanent contraindication to blood donation (only) for a ‘man who has had sexual relations with some other man’; other categories of persons, such every bit persons who receive got had unprotected sexual practice with a casual partner or who receive got had multiple partners inwards the final 4 months, are solely temporarily banned from giving blood.
The Facts
The judgment nether exam was a response to a asking for a preliminary ruling made to the ECJ from the Tribunal administrative, Strasbourg. The query referred arose inwards proceedings brought yesteryear Mr Geoffrey Léger against the French Blood Agency as well as the French Minister for Social Affairs, Health as well as Women’s Rights, challenging the refusal (which was based on the impugned Decree) of the healthcare professional person responsible for donations at the French Blood Agency, to convey Mr Léger’s blood donation, on the sole Earth that he had had sexual relations with some other man. The query that emerged was whether the permanent ban on blood donation yesteryear a adult man who had had sexual relations with some other adult man set downward yesteryear the Decree was consistent with the 2004 Directive. In other words, tin the fact that a adult man has sexual relations with some other adult man in itself amount to a valid argue for permanently excluding him from beingness a blood donor?
The Judgment
The Court began its judgment yesteryear noting that permanent deferral from blood donation nether the 2004 Directive requires the existence of a greater run a hazard (‘high risk’) of acquiring severe infectious diseases that may move transmitted yesteryear blood than that for temporary deferral. The Court, then, explained, that the primary query is whether a adult man who has had sexual relations with some other adult man satisfies the requirement of a ‘high risk’ which justifies the imposition of a permanent ban on blood donation.
The Court explained that this query must move answered yesteryear the referring court, which must convey into job concern human relationship for this operate electrical current medical, scientific, as well as epidemiological noesis nigh France. In answering that question, the national courtroom must ensure that the way that it interprets the 2004 Directive is non opposite to the primal human rights protected inwards the European Union legal monastic enjoin and, inwards particular, that it does non breach the prohibition of discrimination on the ground of sexual orientation which is provided inwards Article 21 of the European Union Charter of Fundamental Rights (‘the Charter’). The Court pointed out that the Decree may discriminate on grounds of sexual orientation opposite to the higher upwards provision, every bit it ‘determines the deferral from blood donation on the ground to [sic] the homosexuality of the manlike individual donors who, on job concern human relationship of the fact that they receive got had homosexual sexual relations, are treated less favourably than manlike individual heterosexual persons.’ The Court so proceeded to Federal Reserve annotation that this may, nonetheless, move justified nether Article 52(1) of the Charter. It noted that although the permanent contraindication provided for inwards the contested Decree contributes to minimising the run a hazard of transmitting an infectious affliction to recipients of blood transfusion and, thus, to the full general objective of ensuring a high score of wellness protection, this needs to move proportionate inwards monastic enjoin to move justified. In exceptional it noted that, firstly, the referring courtroom must verify whether scientific or technical progress inwards the patch of scientific discipline or wellness (which enables the detection of HIV) at in 1 lawsuit allows a high score of wellness protection for recipients to move ensured inwards situations involving men who receive got had sexual relations with other men and, secondly, fifty-fifty if this cannot move verified, it stressed that ‘a permanent deferral from blood donation for the whole grouping of men who receive got had sexual relations with other men is proportionate solely if at that spot are no less onerous methods of ensuring a high score of wellness protection for recipients.’ In particular, every bit regards the latter, the ECJ pointed out that the referring courtroom must decide whether the questionnaire as well as private interview with a medical professional person (which are mentioned inwards the 2004 Directive every bit methods which enable the conclusion of the score of run a hazard of private blood donors) may, inwards fact, enable medical staff to spot the type of behavior presenting a run a hazard for the wellness of recipients as well as inwards this way impose a to a greater extent than express exclusion, which does non cover the entire grouping of men who receive got had sexual relations with a man.
Comments
This representative comes at a fourth dimension when a number of countries – both inside as well as exterior the European Union – receive got relaxed, or regard relaxing, their blanket bans on blood donation yesteryear gay as well as bisexual men. In fact, French Republic itself has, inwards recent months, begun to examine whether it should relax the ban at number inwards this case. Bans on blood donation yesteryear gay as well as bisexual men were introduced dorsum inwards the 1980s, inwards response to the AIDS epidemic, every bit it was widely considered that men having sexual practice with men were to a greater extent than probable to contract HIV, which is the virus that causes AIDS. It is worth pointing out that recent studies receive got shown no alter inwards the security of blood render inwards countries which receive got relaxed restrictions on blood donations yesteryear gay as well as bisexual men.
At outset glance, 1 may persuasion the judgment inwards Léger favourably, inwards that the Court does acknowledge that blood donation bans which are purely based on the fact that a adult man has had sexual practice with some other adult man are discriminatory on the Earth of sexual orientation and, thus, are opposite to Article 21 of the Charter, unless justified. In fact, the Court non solely provides detailed guidance to the national courtroom for determining whether such bans are justified but, also, prompts the latter to apply a strict proportionality test, yesteryear examining whether it is possible to attain the same aim (i.e. a high score of wellness protection) yesteryear adopting less restrictive measures, this demonstrating that a finding that a ban is considered yesteryear the national regime (merely) reasonable does non suffice for justifying it. Accordingly, the judgment makes it clear that Member US no longer receive got a carte du jour blanche when determining whether – as well as to what extent – they volition ban or trammel blood donations yesteryear gay as well as bisexual men but they must ensure that they comply with European Union police clitoris and, inwards particular, with European Union primal human rights as well as the regulation of proportionality.
Nonetheless, a closer await at the judgment reveals that at that spot is a primal flaw inwards the Court’s reasoning as well as this is that it perpetuates stereotypical assumptions nigh the sexual behavior of gay as well as bisexual men, which contribute to the continuing stigmatisation of this segment of the European Union society. In particular, yesteryear belongings that inwards for certain circumstances permanent bans on blood donation which are imposed automatically when a adult man declares that he is gay or bisexual are permitted nether European Union law, the Court implies that it is acceptable to occupation a person’s sexual orientation for the operate of making assumptions nigh his sexual behaviour, inwards this context the supposition beingness that all gay as well as bisexual men engage inwards promiscuous, unprotected, sex. Moreover, maintaining a consummate ban on blood donations yesteryear all gay as well as bisexual men appears to entail a pregnant contradiction when this is done inwards Member US similar the Netherlands or Belgium, which receive got been pioneers inwards permitting same-sex marriage. Isn’t it contradictory to recognise that some gay as well as bisexual men may wishing to wed their long term partner as well as receive got a stable, committed, as well as monogamous human relationship with him, whilst at the same fourth dimension a permanent ban on blood donations yesteryear all gay as well as bisexual men is maintained, because it is assumed that they are (all) engaging inwards promiscuous sexual behavior which places them at a high run a hazard of contracting serious disease? Accordingly, instead of reinforcing stereotypes which Pb to inaccurate assumptions nigh a for certain role of the population (gay as well as bisexual men), the Court should come upwards to price with reality as well as recognise that at that spot is a broad attain of sexual behaviours alongside men as well as women, as well as alongside LGB as well as heterosexual individuals and, thus, the sexual behavior of an private depends neither on his or her sexual practice nor on his or her sexual orientation. This way that the sexual orientation of a individual should non move treated every bit the factor that defines his or her sexual behavior and, hence, it is inappropriate to regard that a individual engages inwards sexually risky behavior only because of their sexual practice or sexual orientation.
Another problematic facial expression of the judgment is that, dissimilar the Advocate General, the Court does non look concerned at all yesteryear the fact that the contested mensurate draws a (completely unjustifiable) distinction betwixt gay as well as bisexual men, on the 1 hand, as well as other segments of the population which engage inwards behavior which puts them at a high run a hazard of contracting a serious disease, on the other. More specifically, the contested French Decree appears to move singling out gay as well as bisexual men every bit the only category of persons that deserves to move permanently excluded from blood donations. Sex workers, heterosexual persons who receive got unprotected sexual practice with multiple partners, as well as intravenous drug users are, clearly, categories of persons who are inwards high run a hazard of contracting a serious affliction that tin move transmitted via blood transfusion. Why, then, is it acceptable that the French Decree does non permanently exclude these categories of persons from blood donation? Doesn’t this fact, inwards itself, demonstrate that the permanent ban imposed on gay as well as bisexual men is unjustifiable as well as disproportionate? Moreover, given that the 2004 Directive as well as the French Decree require blood donors to reply questions about, inter alia, their sexual practice life, as well as to receive got an interview with medical professionals, the latter are able to unmarried out individuals (rather than categories of individuals) who in actual fact (rather than every bit a lawsuit of a mere assumption) engage inwards behavior that places them at a high run a hazard of contracting a serious disease. This is some other factor that demonstrates that maintaining a blanket as well as permanent ban on blood donation yesteryear gay as well as bisexual adult man is disproportionate in all circumstances as well as cannot move considered justified inwards for certain contexts (which is what the Court appears to advise inwards its judgment).
Accordingly, as well as agreeing with the Advocate General, the Court should dominion that ‘the mere fact that a adult man has had or has sexual relations with some other adult man does not, inwards as well as of itself, establish a sexual behavior placing him at a high run a hazard of acquiring severe infectious diseases which tin move transmitted yesteryear blood’. The right approach would, hence, move for the Court to respond inwards this representative yesteryear maxim that Member US should nether no circumstances move permitted to impose a permanent ban on blood donation on men simply as well as but because they are gay or bisexual. The sexual orientation of an private tin nether no circumstances move considered a sufficient argue for including him or her inside a category of persons who engage inwards risky sexual behaviour; rather, the inclusion inwards such a category should move strictly subject on the actual behavior of the individual. This way that Member US should move required to provide inwards their laws that medical professionals should, inwards all instances, occupation the interviews as well as questionnaires which are, already, provided inwards the 2004 Directive, every bit a way to spot persons who should either permanently or temporarily move prevented from donating blood.
