The European Union Court of Justice in April 2015, gave a judgment of the Léger case. This case addressed issues concerning compatibility of measures across the nation where the 2009 French Ministerial Decree banned blood donations by men who have or had had sexual relations with other men. However, the court was of the opinion that such health policies need justifications in certain circumstances and in light of the prevailing context. Among the member states there are available techniques and scientific knowledge for HIV detection even in the early contamination stages.
The judgment triggered numerous social legal questions that pertained to the EU multi-level governance of health including the increasing sex regulation and questions pertaining to the EU sexual citizenship and more specifically the Lesbian Gay Bisexual Trans (LGBT) discrimination. More importantly, the case enlightens on the role played by scientific expertise in cosmopolitan and domestic courts as well as the interplay between scientific knowledge, identity politics, rights and legal disclosures.
Facts of the Judgment
A French administrative tribunal referred this case to the Court of Justice after a physician declined blood collection from one Geoffrey Léger because he was a homosexual. France had banned any blood donations from bisexual and gay men in 1983 following the emergence of the HIV virus epidemic. The Ministerial Decree reaffirmed the ban in 2009. It gives the selection criteria for transposes and blood donors. The 2004 directive gives criteria for eligibility of those who can donate blood as well as temporal and permanent deferral in donation of blood. Of the permanent criteria is sexual behavior. This directive concerns persons whose behavior puts them at risk of catching infectiously serious diseases that are blood transmitted. From the Léger case, the court was to answer if permanent exclusion of MSM from donating of blood is justifiable considering the high risky infectious diseases.
From the courts view point, the question needs a two tier analysis. In performing the risk assessment, the domestic court requires determining the France epidemiological situation and specifically ascertaining the present day scientific, current and epidemiological knowledge. This is in determining if the data on high number of HIV transmission among the population of MSM is relevant and reliable. The domestic court has to examine if there is compatibility of the permanent deferral with the EU charter protected fundamental rights and specifically with the principle of equality.
In this regard, the Court noted that the domestic measure basically determines permanent deferral with respect to blood donations that are based on homosexuality of potential male donors. Therefore, it is possible that homosexuals may be discriminated against.
The court held that firstly, it is upon the domestic court to determine if quarantining blood donations systematically or HIV screening of blood donations is less burdensome compared to a permanent ban. Secondly, in case these techniques are not available, the French ban fails the test of proportionality if there are less burdensome effective techniques for HIV detection. Specifically, it is upon the domestic court to make verifications if an individual questionnaire relating to the sexual behavior of a donor by assessing the elapsed period since his last sexual relation, stability of the concerned person or if the sexual relations were protected.Read More »