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. Continue reading