Lifetime gay blood ban not justifiable, says Europe Court of Justice Advocate General

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A lifetime ban preventing French gay men from donating blood is not justifiable, says the Advocate General of the European Court of Justice.

On Thursday, ECJ Advocate General Mengozzi declared that a sexual relationship between two men does not in itself constitute conduct that justifies permanent exclusion from giving blood.

The Advocate General was commenting on the case of Geoffrey Léger, a gay Frenchman who was prevented from giving blood in 2009 by the country’s blood agency.

Mr Mengozzi said France’s current policy was too broad and generic. It needed to take account of individual sexual behaviour, and not simply sexual orientation, the Advocate General warned.

Mr Mengozzi’s legal opinion stated: “By definitively excluding every man who has had, or has, sexual relations with another man from giving blood, the French legislation introduces obvious indirect discrimination on the combined bases of gender (men) and of sexual orientation (homosexuality and bisexuality).”

The Advocate General also pointed out the inconsistency of French law: for example, there is no specific donation ban on a woman whose partner has sexual relations with other men.

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

Heterosexuals who engage in frequent unprotected sex are also not subjected to the same policy as men who have sex with men (MSM).

The ECJ will now consider Mr Mengozzi’s opinion in relation to the case of Mr Léger. Judgment will be given at a later date.

A report commissioned last year by the French Government stated that prohibiting gay donors is now unnecessary because all donated blood is effectively screened for HIV.

In 2011, England, Wales and Scotland introduced a 12-month deferral for gay and bisexual men who wish to donate blood.

A lifetime ban remains in place in Northern Ireland – due to the insistence of Democratic Unionist Party Health Minister Edwin Poots.

The 12-month deferral for England, Wales and Scotland was chosen in part because of Hepatitis B, which disproportionately affects gay and bisexual men. While there is a four-week window between transmission and detection of HIV, Hepatitis B can take up to a year to be cleared by the body.

The South African Government in May replaced a six-month automatic deferral for gay and bisexual men with a new policy.

Under the new rules, all people – regardless of gender or sexual orientation – are banned from giving blood for six months after having sex with a new partner, and anyone with multiple sexual partners will remain banned from doing so.

Last month, the UK Government rejected calls by the Green Party to end the 12-month deferral.