Permanent exclusion of MSM from blood donation is not justifiable, says Advocate General of the CJEU
Today Advocate General Mengozzi of the Court of Justice of the European Union (CJEU) delivered its Opinion in the case of Geoffrey Léger v Ministre des affaires sociales et de la santé and Établissement français du sang and said that a sexual relationship between two men does not in itself constitute conduct that justifies permanent exclusion from giving blood.
ILGA-Europe welcomes this Opinion and hopes the Court of Justice of the European Union (ECJ) will base its judgement on this Opinion.
Many European countries still ban gay, bisexual and men having sex with men from donating blood. Such bans are not taking into consideration sexual behaviour or practices and exclude those men simply because of whom they are.
Paulo Côrte-Real, Co-Chair of ILGA-Europe’s Executive Board, said:
“This is a very significant opinion which clearly identifies the core problem with such bans: identity of a person or a particular sexuality do not as such represent a risk factor in blood donation and the authorities responsible for ensuring public safety must take into consideration individual sexual behaviour of potential blood donors instead.
We hope the Court will make its judgment in line with the Advocate General’s Opinion and that such discriminatory practices can be abolished.”
The fact of the case: On 29 April 2009, a doctor with the Établissement français du sang (French Blood Agency, ‘the EFS’) refused the blood donation that Mr Léger wished to make, on the grounds that the latter was homosexual and that French law permanently excludes men who have had, or have, sexual relations with other men from giving blood. Mr Léger having challenged that decision, the tribunal administratif de Strasbourg (administrative court, Strasbourg) has asked the Court of Justice whether this permanent exclusion is compatible with an EU directive (Commission Directive 2004/33/EC of 22 March 2004 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards certain technical requirements for blood and blood components (OJ 2004L 91, p. 25). According to that directive, persons whose sexual behaviour puts them at high risk of contracting severe infectious diseases that can be transmitted by blood are permanently excluded from giving blood.
According to our Rainbow Europe’s Index (May 2014), France came 8th among 49 European countries in terms of laws and policies affecting the human rights of LGBTI people.