EU Legal Official Says France Cannot Bar Gays from Giving Blood

EU Legal Official Says France Cannot Bar Gays from Giving Blood

A top legal official at the European Court of Justice (ECJ) has said French authorities may not exclude blood donations from gay sexually-active men.

Paolo Mengozzi, an Advocate General at the court, published an opinion on Thursday which followed a challenge by a homosexual, Geoffrey Léger, to a French law which permanently excludes men who have had, or have, sexual relations with other men from giving blood.

A lower court had asked the ECJ whether this permanent exclusion is compatible with an EU directive which states “that 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.”

Mengozzi, whose opinion as an Advocate General is not binding on the court but in most cases is followed by the judges, said that “a sexual relationship between two men does not, in or of itself alone, constitute conduct that justifies permanent exclusion from giving blood.”

He pointed out that the directive does not define “sexual behaviour.” Therefore sexual behaviour may “be defined by the sexual practices and habits of the individual concerned, in other words, by the specific circumstances in which sexual relations take place.”

He said “that the mere fact that a man has had, or has, sexual relations with another man does not constitute, within the meaning of the directive, ‘sexual behaviour’ warranting permanently excluding that man from giving blood.”

Mengozzi concluded that, while French law appears to regard any male homosexual activity “as an irrebuttable presumption of exposure to high risk,” the law is worded “too broadly and too generically.” He said the concept of ‘sexual behaviour’ used by the EU legislation “requires a specific attitude or behaviour exposing the prospective donor to a high risk of contamination to be identified.”

By definitively excluding every man who has ever had sexual relations with another man “the French law obviously introduces indirect discrimination on the combined bases of gender (male) and sexual orientation (homosexuality and bisexuality).”

The difference, Mengozzi said, is unwarranted, disproportionate and inconsistent. “For example, there is no specific contraindication for a woman whose partner might have or have had sexual relations with other men.”

Moreover, “a person whose partner is HIV-positive is subject only to a temporary contraindication of four months, although, in such a case, the risk exposure is real.”

The judgement is not available in English, but a summary of the case from the ECJ press service is here.


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