In December of last year, an FDA advisory panel met to discuss whether or not the federal government should reverse its policy banning gay men from donating blood. If the FDA had lifted the ban, gay men would have been allowed togive blood if they abstained from sexual encounters with men for 12 months, a posture that was analyzed in this blog. However, the federal government in the US did not change its policies and men who have sex with men (MSMs) are still banned from blood donation. Luckily, this is not the case in Europe, were countries such as Portugal and the UK have authorized donations, limiting their deferral periods for sexually active MSMs to a year. Other countries like Spain and Italy have gone even further, preferring individual risk assessment approaches instead of discriminatory measures based on sexual orientation.
On November 9th, France joined this list of countries, when French Minister of Health Marisol Tourraine ended the lifetime ban for gay and bisexual men, authorizing MSMs to donate blood, with the one-year deferral period. This new regulation will be tested during one year, and if no new risks are identified, MSMs will be allowed to donate their blood under the same conditions as the rest of the population. Although French Health Ministers had been announcing that they wanted to end the discriminatory banfor more than ten years, they hadn’t been able to do it do to an HIV contaminated blood transfusion that took place in the 1980s. The health crisis that occurred because of this event brought the Prime Minister and the Minister of Health before the High Court of Republic for the first time in French history, making the topic a taboo matter in the government. Homosexual discrimination and the European Court of Justice
France loosened its ban on gay men after the European Court of Justice ruled in favor of adopting less restrictive measures than a lifetime ban on all MSMs. The European Court looked at this case after Geoffrey Léger, a French homosexual who had not been allowed to donate blood, challenged France before a national court, arguing that French legislation was violating European Law. He argued that the ban was discriminatory under Article 21 of the EU Charter of Fundamental Rights. The case was brought before the Court of Justice of the European Union to examine if the lifetime ban of MSM had to be considered as a discrimination against homosexuals and if violated European law.
The European court recognized that discrimination did in fact exist, considering that male homosexuals “are treated less favorably than male heterosexual persons”. The court also found that France’s law was “liable to discriminate against male homosexuals on the basis of sexual orientation”, which is against EU policy.
After examining the case the Court ruled that EU governments might be justified in banning gay men from donating blood but under strict conditions. It concluded that a lifetime ban must be justified by the general objective of ensuring a high level of health protection as well as being a proportionate measure. The principle of proportionality in this case only allows for a lifetime ban if the following circumstances are met:
Those people banned for life from donating blood must be exposed to a high risk level of infection;
There are no effective techniques for detecting severe diseases that can be transmitted by blood;
There are no less onerous methods of ensuring a high level of health protection to recipients
While the European court recommends national courts operate a proportionality test on their legislations, it did not conclude that a ban on MSMs is discriminatory in itself. The European Court of Justice had the opportunity with this case to recommend that blood donation no longer be looked at as something directly tied to sexual orientation but rather to individual sexual behaviors or other risky behaviors. While the Charter of Fundamental Rights of the EU does state that “any discrimination based on any ground such as sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited”, the Court considers that in this case discrimination can be justified to protect the public health. The reasoning behind this is that the incidence of HIV is higher amongst the gay community. The decision raises some important questions to think about in the future. Would the EU also find discrimination justified to protect the public health in the cases of other vulnerable populations where incidence is also high? When and where can discrimination be justified to protect the right to health and to what extent?
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.