Alina Tryfonidou, Associate Professor in EU Law, School of Law, University of Reading
In a much awaited judgment delivered earlier this week in Case C-528/13 Léger, the Court of Justice ruled that permanent Member State bans on the donation of blood by gay and bisexual men which are based merely on the fact that they had had sexual relations with another man, may, in certain circumstances, be justified by the need to ensure a high level of health protection. Below, I will explain why this is a disappointing ruling which may, fairly, subject the Court to accusations of, at best, not going far enough in the protection of LGB rights and, at worst, deep-seated homophobia. Before exploring the reasons behind these accusations, nonetheless, I shall summarise the legal and factual background to the case and the main parts of the Court’s judgment.
In order to minimise any risk of transmission of infectious diseases as a result of blood transfusion, Directive 2002/98 (‘the 2002 Directive’) sets standards of quality and safety for the collection, testing, processing, storage and distribution of human blood and blood components. The above instrument is implemented by Directive 2004/33 (‘the 2004 Directive’), which, in its Annex III, sets out the criteria for excluding certain categories of persons from blood donations: Point 2.1 of the Annex provides that a permanent ban can be imposed on, inter alia, ‘persons whose sexual behaviour puts them at high risk of acquiring severe infectious diseases that can be transmitted by blood’ (‘the 2.1 category’), whilst Point 2.2.2 of the same Annex, provides that a temporary ban may be imposed on ‘persons whose behaviour or activity places them at risk of acquiring infectious diseases that may be transmitted by blood’ (‘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’) – which was adopted in 2009 in implementation of the 2004 Directive, and which, as its name suggests, sets the criteria for selection of blood donors in France – provides a permanent contraindication to blood donation (only) for a ‘man who has had sexual relations with another man’; other categories of persons, such as persons who have had unprotected sex with a casual partner or who have had multiple partners in the last four months, are only temporarily banned from giving blood.
The judgment under examination was a response to a request for a preliminary ruling made to the ECJ from the Tribunal administrative, Strasbourg. The question referred arose in proceedings brought by Mr Geoffrey Léger against the French Blood Agency and the French Minister for Social Affairs, Health and Women’s Rights, challenging the refusal (which was based on the impugned Decree) of the healthcare professional responsible for donations at the French Blood Agency, to accept Mr Léger’s blood donation, on the sole ground that he had had sexual relations with another man. The question that emerged was whether the permanent ban on blood donation by a man who had had sexual relations with another man laid down by the Decree was consistent with the 2004 Directive. In other words, can the fact that a man has sexual relations with another man in itself amount to a valid reason for permanently excluding him from being a blood donor?
The Court began its judgment by noting that permanent deferral from blood donation under the 2004 Directive requires the existence of a greater risk (‘high risk’) of acquiring severe infectious diseases that may be transmitted by blood than that for temporary deferral. The Court, then, explained, that the main question is whether a man who has had sexual relations with another man satisfies the requirement of a ‘high risk’ which justifies the imposition of a permanent ban on blood donation.
The Court explained that this question must be answered by the referring court, which must take into account for this purpose current medical, scientific, and epidemiological knowledge about France. In answering that question, the national court must ensure that the way that it interprets the 2004 Directive is not contrary to the fundamental human rights protected in the EU legal order and, in particular, that it does not breach the prohibition of discrimination on the basis of sexual orientation which is provided in Article 21 of the EU Charter of Fundamental Rights (‘the Charter’). The Court pointed out that the Decree may discriminate on grounds of sexual orientation contrary to the above provision, as 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.’ The Court then proceeded to note that this may, nonetheless, be justified under Article 52(1) of the Charter. It noted that although the permanent contraindication provided for in the contested Decree contributes to minimising the risk of transmitting an infectious disease to recipients of blood transfusion and, thus, to the general objective of ensuring a high level of health protection, this needs to be proportionate in order to be justified. In particular it noted that, firstly, the referring court must verify whether scientific or technical progress in the field of science or health (which enables the detection of HIV) now allows a high level of health protection for recipients to be ensured in situations involving men who have had sexual relations with other men and, secondly, even if this cannot be verified, it stressed 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.’ In particular, as regards the latter, the ECJ pointed out that the referring court must determine whether the questionnaire and individual interview with a medical professional (which are mentioned in the 2004 Directive as methods which enable the determination of the level of risk of individual blood donors) may, in fact, enable medical staff to identify the type of behaviour presenting a risk for the health of recipients and in this way impose a more limited exclusion, which does not cover the entire group of men who have had sexual relations with a man.
This case comes at a time when a number of countries – both within and outside the EU – have relaxed, or consider relaxing, their blanket bans on blood donation by gay and bisexual men. In fact, France itself has, in recent months, begun to examine whether it should relax the ban at issue in this case. Bans on blood donation by gay and bisexual men were introduced back in the 1980s, in response to the AIDS epidemic, as it was widely considered that men having sex with men were more likely to contract HIV, which is the virus that causes AIDS. It is worth pointing out that recent studies have shown no change in the safety of blood supply in countries which have relaxed restrictions on blood donations by gay and bisexual men.
At first glance, one may view the judgment in Léger favourably, in that the Court does admit that blood donation bans which are purely based on the fact that a man has had sex with another man are discriminatory on the ground of sexual orientation and, thus, are contrary to Article 21 of the Charter, unless justified. In fact, the Court not only provides detailed guidance to the national court for determining whether such bans are justified but, also, prompts the latter to apply a strict proportionality test, by examining whether it is possible to achieve the same aim (i.e. a high level of health protection) by adopting less restrictive measures, this demonstrating that a finding that a ban is considered by the national authorities (merely) reasonable does not suffice for justifying it. Accordingly, the judgment makes it clear that Member States no longer have a carte blanche when determining whether – and to what extent – they will ban or restrict blood donations by gay and bisexual men but they must ensure that they comply with EU law and, in particular, with EU fundamental human rights and the principle of proportionality.
Nonetheless, a closer look at the judgment reveals that there is a fundamental flaw in the Court’s reasoning and this is that it perpetuates stereotypical assumptions about the sexual behaviour of gay and bisexual men, which contribute to the continuing stigmatisation of this segment of the EU society. In particular, by holding that in certain circumstances permanent bans on blood donation which are imposed automatically when a man declares that he is gay or bisexual are permitted under EU law, the Court implies that it is acceptable to use a person’s sexual orientation for the purpose of making assumptions about his sexual behaviour, in this context the assumption being that all gay and bisexual men engage in promiscuous, unprotected, sex. Moreover, maintaining a complete ban on blood donations by all gay and bisexual men appears to entail a significant contradiction when this is done in Member States like the Netherlands or Belgium, which have been pioneers in permitting same-sex marriage. Isn’t it contradictory to recognise that some gay and bisexual men may wish to marry their long term partner and have a stable, committed, and monogamous relationship with him, whilst at the same time a permanent ban on blood donations by all gay and bisexual men is maintained, because it is assumed that they are (all) engaging in promiscuous sexual behaviour which places them at a high risk of contracting serious disease? Accordingly, instead of reinforcing stereotypes which lead to inaccurate assumptions about a certain part of the population (gay and bisexual men), the Court should come to terms with reality and recognise that there is a wide range of sexual behaviours among men and women, and among LGB and heterosexual individuals and, thus, the sexual behaviour of an individual depends neither on his or her sex nor on his or her sexual orientation. This means that the sexual orientation of a person should not be treated as the factor that defines his or her sexual behaviour and, hence, it is inappropriate to consider that a person engages in sexually risky behaviour only because of their sex or sexual orientation.
Another problematic aspect of the judgment is that, unlike the Advocate General, the Court does not appear concerned at all by the fact that the contested measure draws a (completely unjustifiable) distinction between gay and bisexual men, on the one hand, and other segments of the population which engage in behaviour which puts them at a high risk of contracting a serious disease, on the other. More specifically, the contested French Decree appears to be singling out gay and bisexual men as the only category of persons that deserves to be permanently excluded from blood donations. Sex workers, heterosexual persons who have unprotected sex with multiple partners, and intravenous drug users are, clearly, categories of persons who are in high risk of contracting a serious disease that can be transmitted via blood transfusion. Why, then, is it acceptable that the French Decree does not permanently exclude these categories of persons from blood donation? Doesn’t this fact, in itself, demonstrate that the permanent ban imposed on gay and bisexual men is unjustifiable and disproportionate? Moreover, given that the 2004 Directive and the French Decree require blood donors to answer questions about, inter alia, their sex life, and to have an interview with medical professionals, the latter are able to single out individuals (rather than categories of individuals) who in actual fact (rather than as a result of a mere assumption) engage in behaviour that places them at a high risk of contracting a serious disease. This is another factor that demonstrates that maintaining a blanket and permanent ban on blood donation by gay and bisexual man is disproportionate in all circumstances and cannot be considered justified in certain contexts (which is what the Court appears to suggest in its judgment).
Accordingly, and agreeing with the Advocate General, the Court should rule 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, hence, be for the Court to respond in this case by saying that Member States should under no circumstances be permitted to impose a permanent ban on blood donation on men simply and merely because they are gay or bisexual. The sexual orientation of an individual can under no circumstances be considered a sufficient reason for including him or her within a category of persons who engage in risky sexual behaviour; rather, the inclusion in such a category should be strictly dependent on the actual behaviour of the individual. This means that Member States should be required to provide in their laws that medical professionals should, in all instances, use the interviews and questionnaires which are, already, provided in the 2004 Directive, as a means to identify persons who should either permanently or temporarily be prevented from donating blood.
Barnard & Peers: chapter 20, chapter 21