Alina Tryfonidou, Associate Professor in EU Law, School of Law, University of Reading

A recent ruling by the Court of Justice in Case C-528/13 Léger determined that permanent bans on blood donation by gay and bisexual men solely based on their sexual history with other men might be justified in certain situations to ensure high health protection standards. This piece argues that this ruling is disappointing and could lead to accusations of inadequate LGB rights protection or even ingrained homophobia. Before delving into these criticisms, the legal context, case facts, and key aspects of the Court’s judgment will be summarized.

The Law

Directive 2002/98 (’the 2002 Directive’) establishes quality and safety standards for collecting, testing, processing, storing, and distributing human blood and blood components to minimize the risk of transmitting infectious diseases through blood transfusions. This instrument is implemented through Directive 2004/33 (’the 2004 Directive’), which outlines criteria for excluding specific groups from blood donation in Annex III: Point 2.1 allows for a permanent ban on individuals with sexual behaviors that put them at high risk of contracting severe infectious diseases transmissible through blood (’the 2.1 category’). Conversely, Point 2.2.2 permits a temporary ban on those whose behavior or activities pose a risk of acquiring such diseases (’the 2.2.2. category’). The contested French measure – L’Arrêté du 12 Janvier 2009 fixant les critères de selection des donneurs de sang (’the Decree’), implemented in 2009 – outlines criteria for selecting blood donors in France and imposes a permanent blood donation contraindication solely on ‘men who have had sexual relations with another man.’ Other groups, such as individuals engaging in unprotected sex with casual partners or having multiple partners within four months, only face temporary bans.

The Facts

The present judgment responds to a request for a preliminary ruling from the Tribunal administratif, Strasbourg, to the ECJ. The case arose from proceedings initiated by Mr. Geoffrey Léger against the French Blood Agency and the French Minister for Social Affairs, Health and Women’s Rights. Mr. Léger contested the refusal of his blood donation based solely on his sexual history with another man, citing the contested Decree. This raised the question of whether the Decree’s permanent ban on blood donation by men who have had sexual relations with other men aligns with the 2004 Directive. In simpler terms, can a man’s sexual history with other men be sufficient grounds for permanent exclusion from blood donation?

The Judgment

The Court highlighted that permanent blood donation deferral under the 2004 Directive requires a ‘high risk’ of acquiring severe infectious diseases transmissible by blood, greater than the risk associated with temporary deferral. The crucial question is whether a man having had sexual relations with another man constitutes this ‘high risk,’ justifying a permanent ban.

The Court stated that the referring court should address this question considering current French medical, scientific, and epidemiological knowledge. This interpretation of the 2004 Directive should not infringe upon the fundamental human rights safeguarded by the EU legal order, particularly Article 21 of the EU Charter of Fundamental Rights (’the Charter’), which prohibits discrimination based on sexual orientation. The Court acknowledged that the Decree, by potentially discriminating based on sexual orientation, might contradict the Charter. This is because it “determines the deferral from blood donation on the basis to [sic] the homosexuality of the male donors who, on account of the fact that they have had homosexual sexual relations, are treated less favourably than male heterosexual persons.” However, the Court suggested this discrimination could be justified under Article 52(1) of the Charter, acknowledging the Decree’s role in minimizing the risk of transmitting infectious diseases through blood transfusions and ensuring a high level of health protection. However, it emphasized the need for proportionality. The referring court must verify whether scientific or technical advancements in health and science (allowing for HIV detection) now ensure a high level of health protection for recipients when dealing with men who have had sexual relations with other men. Furthermore, even if this cannot be verified, the Court emphasized that “a permanent deferral from blood donation for the whole group of men who have had sexual relations with other men is proportionate only if there are no less onerous methods of ensuring a high level of health protection for recipients.” Specifically, the ECJ indicated that the referring court must assess whether the questionnaire and individual interview with a medical professional (methods mentioned in the 2004 Directive for determining an individual blood donor’s risk level) enable medical staff to identify behaviors that pose risks to recipient health, thus allowing for a narrower exclusion that doesn’t encompass all men who have had sexual relations with men.

Comments

This case arises when many countries, within and outside the EU, have eased or are considering relaxing blanket bans on blood donations from gay and bisexual men. Even France has recently started examining the potential relaxation of the ban addressed in this case. These bans originated in the 1980s during the AIDS epidemic due to the widespread belief that men having sex with men were more susceptible to HIV, the virus causing AIDS. Recent studies indicate no change in blood supply safety in countries that have relaxed these restrictions.

Initially, the Léger judgment might seem favorable, as the Court acknowledges that blood donation bans solely based on a man having had sex with another man are discriminatory on grounds of sexual orientation and thus contradict Article 21 of the Charter, unless justified. In fact, the Court details how the national court should determine if such bans are justified and encourages a strict proportionality test by examining whether less restrictive measures could achieve the same aim (high health protection level). This demonstrates that national authorities merely deeming a ban ‘reasonable’ isn’t sufficient justification. Therefore, the judgment clarifies that Member States no longer have free reign when deciding whether or how to ban or restrict blood donations from gay and bisexual men. They must adhere to EU law, especially fundamental human rights and the principle of proportionality.

However, a closer look reveals a critical flaw: the Court perpetuates stereotypical assumptions about the sexual behavior of gay and bisexual men, further stigmatizing this group within EU society. By stating that permanently banning blood donations based automatically on a man’s self-declared sexual orientation as gay or bisexual is permissible under EU law in certain circumstances, the Court implies that it is acceptable to use sexual orientation to infer sexual behavior. Here, the assumption is that all gay and bisexual men engage in promiscuous, unprotected sex. Additionally, upholding a complete ban on all gay and bisexual men donating blood seems contradictory in nations like the Netherlands or Belgium, pioneers in legalizing same-sex marriage. How can we recognize that some gay and bisexual men desire to marry their long-term partners and have stable, committed, monogamous relationships while maintaining a blanket ban because of an assumed promiscuity that increases the risk of contracting severe diseases? Instead of reinforcing stereotypes leading to inaccurate assumptions about a specific population segment (gay and bisexual men), the Court should acknowledge the reality of diverse sexual behaviors among all genders and sexual orientations. An individual’s sexual behavior depends neither on their sex nor their sexual orientation. Therefore, sexual orientation shouldn’t determine assumptions about sexual behavior, and it’s inappropriate to assume someone engages in risky sexual behaviors solely based on their sex or sexual orientation.

Another problematic aspect, unlike the Advocate General’s opinion, is that the Court doesn’t seem concerned that the contested measure differentiates between gay and bisexual men and other population segments engaging in high-risk behavior for contracting severe diseases. Specifically, the contested French Decree appears to single out gay and bisexual men as the sole group deserving permanent exclusion from blood donations. Sex workers, heterosexuals engaging in unprotected sex with multiple partners, and intravenous drug users are clearly at high risk of contracting severe diseases transmissible through blood transfusion. Why, then, does the French Decree not permanently exclude these groups from blood donation? Doesn’t this demonstrate that the permanent ban on gay and bisexual men is unjustified and disproportionate? Additionally, since the 2004 Directive and the French Decree require blood donors to answer questions about their sex lives and undergo interviews with medical professionals, medical professionals can already identify individuals (not just categories) who actually engage in high-risk behavior. This further proves that a blanket, permanent ban on blood donation by gay and bisexual men is disproportionate in all circumstances and cannot be considered justified in specific contexts (as the Court seems to suggest).

Therefore, in line with the Advocate General’s position, the Court should have ruled that “the mere fact that a man has had or has sexual relations with another man does not, in and of itself, constitute a sexual behaviour placing him at a high risk of acquiring severe infectious diseases which can be transmitted by blood.” The correct approach would be for the Court to state that Member States should never impose a permanent blood donation ban on men simply because they identify as gay or bisexual. An individual’s sexual orientation cannot justify categorizing them as engaging in risky sexual behavior. Inclusion in such a category should solely depend on their actual behavior. Consequently, Member States should legally require medical professionals to utilize the interviews and questionnaires already provided in the 2004 Directive to identify individuals who should be temporarily or permanently restricted from blood donation.

Barnard & Peers: chapter 20, chapter 21