Brussels, 17/07/2014 (Agence Europe) - By introducing a permanent ban on homosexual men donating blood, France has introduced hard-to-justify discrimination, argued European Court of Justice Advocate General Paolo Mengozzi on Thursday 17 July in case C-528/13.
French law permanently bans men who have been or who are in sexual relationships with other men from donating blood. Under EU Directive 2004/33/EC, such a permanent ban on blood donation from people exposed through their sexual habits to serious transmissible infectious diseases that can be caught through blood is allowed. The Advocate General explained that, in this case, member states are free to introduce stricter measures than are laid down in the directive, and this is legitimate if the aim is to reduce the risk of contamination for the recipients of the blood.
France seems to be pursuing this objective, but the Advocate General accuses the French legal system of suggesting that all male homosexuals were involved in risky sexual behaviour and this is difficult to justify because, by recognising the notion of “behaviour”, the European legislator wanted to identify action by an individual or a particular attitude that led to greater exposure to risk. He said that ruling out blood donation by any homosexual or bisexual man constitutes indirect discrimination on the basis of sex or sexual orientation.
The judge says that, in order to assess whether behaviour is risky, it would be better to examine the actual conditions in which sex occurs and take these into account. The simple fact of a man having sex with another man does not put him at any more risk than a woman having sex with a man who has sex with men, argued Mengozzi, pointing out the inconsistency in French law, which does not exclude any women from blood donation. He concludes that homosexuality is not a “sexual behaviour” justifying permanent exclusions under EU law. (JK)