In April 2015, the EU Court of Justice delivered its judgment in Léger v. Ministre des Affaires sociales, de la Santé et des Droits des femmes; Etablissement français du sang. The case addressed the compatibility of national measures – here the French 2009 Ministerial Decree – permanently banning blood donations by men who had or have sexual relations with other men (further ‘MSM’) with EU law. The Court found that these health policies could be justified in some circumstances, in light of the specific context prevailing in the Member State and the scientific knowledge and techniques available for detecting HIV in the early stages of contamination.
This judgment triggers a myriad of socio-legal questions pertaining to the EU multi-level health governance, including the rising area of sexual risk regulation, as well as questions regarding EU sexual citizenship, and more particularly the discrimination of Lesbian Gay Bisexual Trans (LGBT) individuals. The case, moreover, sheds light on the role scientific expertise plays in domestic and supranational courts, and the interplay between legal discourse, scientific knowledge, rights and identity politics. In this blog post, we offer a brief outline of the Court’s decision and highlight some of its controversial legal and normative aspects.
The Facts and the Judgment
The case was referred to the Court of Justice by a French administrative tribunal, after a physician refused to collect blood from Mr. Geoffrey Léger because of his homosexuality. France banned blood donations by gay and bisexual men in 1983 in response to the human immunodeficiency virus (HIV) epidemic. In 2009, a Ministerial Decree reaffirmed this ban. It provides for the selection criteria for blood donors and transposes the 2004 EU Directive implementing the Directive 2002/98/EC concerning technical requirements for blood and blood components. The 2004 Directive lists eligibility criteria for blood donors and for permanent and temporary deferral from blood donations. One of these permanent criteria concerns sexual behaviour. The Directive refers to ‘persons whose sexual behaviour puts them at a high risk of acquiring serious infectious diseases that can be transmitted by blood’, In the Léger case, the Court was asked whether the permanent exclusion of MSM from blood donation is justifiable in light of the high risk of infectious diseases.
According to the Court, this question requires a two-tier analysis. In order to perform the risk assessment, the domestic court needs to determine the epidemiological situation in France, and in particular to ascertain ‘in light of current medical, scientific and epidemiological knowledge’ whether data on the high number of HIV transmissions among MSM population is reliable and relevant (para. 44). Should this be the case, the domestic court needs to examine then if the permanent deferral is compatible with fundamental rights protected by the EU Charter and in particular with the equality principle (para. 45). In this respect, the Court notes that the domestic measure essentially determines permanent deferral from blood donations based on the homosexuality of the potential male donor. It may therefore discriminate against homosexuals. It follows that it is for the domestic court to ascertain whether this measure is adopted in order to pursue a legitimate aim – namely the protection of health – and whether it is proportionate (para. 52).
The Court stresses two elements central to the proportionality test: first, it is for the domestic court to ascertain whether there are effective techniques for detecting HIV in blood donations. This addresses one of France’s arguments according to which the total ban on blood donations serves to ensure a maximum level of health protection. The reason behind the ban is that there is a ‘window period’ after the first infection during which the virus cannot be detected in the blood. To this, the Court replies that it is for the domestic court to determine whether systematic quarantining of blood donations or screening for HIV of all blood donations is less burdensome than a permanent ban (para. 64). Second, should these techniques be not available, the French ban does not pass the proportionality test if there are other less onerous effective techniques for detecting HIV (para. 65). In particular, it is for the domestic court to verify whether an individual questionnaire – focusing on each donor’s sexual behaviour by looking at the ‘period which has elapsed since (his) most recent sexual relations (…), the stability of the relationship of the person concerned, or whether sexual relations were protected’ (para. 66) – can allow health practitioners to asses whether the individual is exposed to a high risk of HIV infection.
Contextual Analysis of the Judgment
This judgment was delivered in a divisive domestic and global social context. In France, the ruling came only a year after the country has finally legalized same sex marriages, shedding light on other remaining legal exclusions faced by the gay population. François Hollande promised during his presidential campaign to lift the ban, as some LGBT associations have argued that it constitutes discriminatory practices on the grounds of sexual orientation.
Moreover, two recent French studies have come to opposite conclusions: the ‘Véran Report’ (referred to by the Court of Justice) recommends to improve the individual questionnaire which will allow health practitioners to evaluate whether the sexual behavior of an individual male donor who had or has sex with men exposes him to a high risk of HIV infection, while the Comité Consultatif National d’Éthique pour les Sciences de la Vie et de la Santé suggested that the ban should be maintained. The Committee stressed three factors explaining this decision: insufficient current scientific knowledge, lack of efficient information campaigns targeting MSM population and the format of the individual questionnaire. The Committee suggested that the state needs to organize a wider public debate with all the stakeholders before introducing any legal changes.
Outside France, total bans are also called into question with a clear tendency within the EU to abolish them. In Europe, Spain, Italy and the UK have adopted temporary deferrals for up to a year, in attempt to address the supposedly higher risk of HIV amongst MSM during the window period. In the USA, the American Medical Association has recommended the elimination of the permanent deferral arguing that the latter was no longer scientifically justified and the Food and Drug Administration has recently recommended a one-year deferral.
We briefly stress two problematic points in the Léger judgment related to the discrimination analysis and the broader politics of the Court’s decision.
First, in its discrimination analysis, the Court only makes reference to the Charter of Fundamental Rights. It therefore neglects other EU law instruments that prohibit discrimination on the ground of sexual orientation. Unlike Advocate General Mengozzi, the Court does not mention the Article 19 TFEU which gives the EU power to tackle discrimination on the grounds of sexuality. In addition, it does not refer, not even en passant, to the Equal Treatment Directive 2000/78, which incorporated discrimination on the grounds of sexual orientation into EU secondary law. This narrow understanding of the EU discrimination regime suggests that the Court is unwilling to stretch the material scope of the Equality Directive beyond the employment market and labour relations. The decision therefore calls into question the very existence of a general principle of non-discrimination on the grounds of sexual orientation. For a different understanding of the material scope of discrimination, see the opinions of AG Jääskinen in Römer Case C‑147/08 and AG Mengozzi in the present case.
Second, the Court’s analysis of discrimination is extremely narrow: the broader social patterns of scientific knowledge and health policies are excluded from the inquiry. In addition, bisexuals are left aside as a subject of sexual discrimination. This is striking, as the French measure targets both groups of homosexuals and bisexual men, and the whole range of fluid identities including straight-men-occasionally-engaging-in-gay-sex. In this context, it is hard to understand why the Court decided to leave this category aside. This type of reasoning reinforces the straight-gay binary and a dichotomist vision of sexuality. It contradicts the broader vision of EU sexual citizenship which – as one of us argued elsewhere – needs to be seen as a continuum rather than a set of clearly defined categories. It also brings us back to the broader issue of bisexuals’ invisibility, or as Kenji Yoshino described it in the US context, ‘the epistemic contract of bisexual erasure’.
Our second point relates to the normative consequences of the decision. Despite its progressive tone, this case reinforces in fact the idea that HIV is a ‘gay disease’. This may seem particularly surprising in light of the Court’s willingness to fight homophobia as a matter of direct discrimination in the labour context (see our analysis in the case of Asociaţia ACCEPT, C-81/12).
The Court engages extensively in the proportionality analysis, suggesting that in some cases the permanent ban may be compatible with EU law including its prohibition of discrimination. The reasoning seems however confusing, as techniques such as quarantining of the blood and the systematic screening of blood donations are already available and implemented by some countries. It seems therefore that a Member State can hardly satisfy the first part of the proportionality test.
Moreover, if the window period amounts to twenty two days – as pointed out by the French Government (see par. 50 of the AG Opinion) – the Court does not explain why all MSM intercourses, including those singular or occurring, for example, four months before the blood donation, should necessarily exclude this category of people from donation? Likewise, the Court seems to back the French ban’s focus on sexuality while the Directive specifically mentions sexual behaviour. According to the French law, a man or a woman having frequent unprotected heterosexual intercourses – including with an HIV infected partner – will be, at best, temporally excluded from donation, while a man in a committed homosexual relationship is permanently excluded. It is hard to see how this disparate treatment can be scientifically justified.
The cautious approach adopted by the Court seems even more problematic since targeting specifically MSM population relies on cultural demeaning representations of gay and bisexual sexualities connected to promiscuity. This reinforces the division between ‘uninfected straights’ and ‘contagious gays’, and supports the perception of gays as ‘dangerous’ or social outcasts. Overall, the EU Court seems to have missed a timely occasion to explain why – both legally and politically – such health policies are discriminatory and humiliating.
Uladzislau Belavusau is assistant professor of EU law and human rights at Vrije Universiteit Amsterdam (the Netherlands). He holds a Ph.D. from the European University Institute (Florence, Italy) and an LL.M. from the Collège d’Europe (Bruges, Belgium). In addition, he has been a guest lecturer and a visiting scholar in the Netherlands (Tilburg, Groningen), USA (Berkeley), Canada (Toronto), Belgium (Leuven), Germany (Heidelberg), Italy (Florence), Czech Republic (Brno) and Poland (Warsaw). His research interests cover EU non-discrimination law, human rights, comparative constitutional law, law and society. For more, see: http://www.rechten.vu.nl/belavusau
Ivana Isailović is a Boulton Fellow at McGill University, Faculty of Law (Canada). She holds a PhD from Sciences Po Paris (France) and an LLM from Sorbonne University (France) in partnership with Columbia Law School (US). Prior to joining McGill, she was a post-doctoral fellow at the Université libre de Bruxelles (Belgium), where she was affiliated to the Interuniversity Human Rights Integration Project, and a visiting scholar at NYU Law School (US) and McGill Faculty of Law. Her research focuses on transnational private economic and family law, human rights, health law and law and society. For more, see: https://mcgill.academia.edu/IvanaIsailovic