Blood donations: Sexual preference and science

Should gay men be allowed to donate blood? In April 2015, the European Court of Justice ?(CJEU) reached what seemed ?a predictable judgment in this controversial area in Case C-528/13 Léger (fourth chamber, 29 April 2015). 

But recent commentary ?on the European Law Blog (europeanlawblog.eu) by Uladzislau Belavusau and Ivana Isailovi? criticises the decision for failing to grapple adequately with the issues involved. Because it is rare to find the CJEU drawn into this arena, and because its reputation for taking a stand in areas of controversy concerning human rights is mixed, it seems worth glancing at the judgment.

Directive 2002/98/EC sets standards for the collection and processing of blood products. It provides for member states to ‘permanently defer’ (i.e. completely ban) donations by those whose ‘sexual behaviour puts them at high risk of acquiring severe infectious diseases’ that can be transmitted by blood. It provides for temporary deferral of persons whose activity places them ‘at risk’ of acquiring such infections. The law in France, where ?Mr Léger resided, provided for ?a permanent contraindication ?in cases where a man ‘has ?had sexual relations with another man’.

In April 2009, Léger tried to give blood, but was precluded from doing so on the basis that he had had sexual relations with another man. The court was asked whether that refusal was consistent with the directive, interpreted in the light of article 21 of the Charter of Fundamental Rights of the European Union, which precludes discrimination on grounds of sexual orientation.

Risk or high risk?

There was a disparity between different language versions of the directive; some allowed permanent exclusion on the basis of ‘risk’, and some required ‘high risk’. The CJEU resolved that difference purposively: permanent deferral ought to require greater risk than temporary deferral, so ‘high risk’ should be the yardstick. 

The court then turned to the charter. A rule which prevents gay men from giving blood is capable of being discriminatory. It could be justified only if: 

• Reliable and relevant data demonstrated that gay men actually pose a ‘high risk’; and 

• There are no other means of screening blood donated by gay men so as to eliminate or reduce that risk. 

Those were factual questions, ?left to be resolved by the national court.

Belavusau and Isailovi? criticise the judgment on a number of counts: 

• For relying on the charter (and not on other instruments prohibiting discrimination); 

• For taking a narrow view of discrimination; and 

• Because it does not take account of the best current knowledge about the actual level of risk and how it might be prevented. 

Fair criticisms?

The fact that there are other possible instruments, beside the charter, that would prohibit discrimination against homosexual men is hardly relevant, unless their scope is materially different from that of the charter. 

Nor is it quite correct to describe the court’s approach to discrimination as ‘narrow’. The court correctly identified the issue, and the core question, which is what measures are justified by the best current knowledge of the risks involved. 

It may well be true that measures targeting gay donors rest at least in part on ‘demeaning cultural representations of gay and bisexual sexualities connected with promiscuity’. But the court’s judgment does not: it insists that the question be examined by the national court ?in the light of the best up-to-date scientific data, and it insists that ?if ‘less onerous’ means of preventing infection exist, ?they must be adopted.

The CJEU left the assessment ?of that evidence to the national court. That naturally meant that the CJEU’s judgment did not ?itself address some relevant factual questions. But it is typical for the CJEU to leave such matters to a national court, and there are sound reasons for that practice. This does not mean that the court is taking a narrow approach to discrimination; simply that it takes a narrow approach to its role in assessing whether there is discrimination in a particular case.

In short, the view that the decision in Léger is weak in the face of discrimination is not made out. The court was quite clear that discrimination is not acceptable, and that gay and bisexual men may not be prevented from giving blood except to the minimum extent necessary to prevent infection, judged against the most current and best scientific knowledge on the subject. SJ

Paul Stanley QC is a barrister practising from Essex Court Chambers @EssexCourtLaw essexcourt.com