Blood donor exclusions based on sexual orientation may amount to unlawful discrimination

Geoffrey Léger v the French Ministry of Health and the French Blood Service (European Court of Justice, C‑528/13, 29 April 2015)

French health policy imposes a life-time ban on blood donations from men who have sex with men. Asked to consider the legality of such a ban, the European Court of Justice held that the policy was discriminatory, but may be justifiable on the basis of public health. Whether it is justifiable will depend on the prevalence of HIV in the country and the availability of less onerous means of protecting blood supplies. The Court referred the matter back to the Administrative Tribunal for determination.

Facts

Mr Léger, a French male citizen, attended a French Blood Agency blood donation centre in Metz, France to give blood in April 2009. The blood donation centre doctor, citing Annex II to the French decree dated 12 January 2009 (French Decree), turned Mr Léger away on the basis that Mr Léger had previously had sex with a man-- a ground for the permanent deferral of a prospective blood donor under the French Decree.

Mr Léger brought proceedings challenging the doctor's decision before the Administrative Court of Strasbourg in France.

Article 1(V)(1) of the French Decree provided:

• "At the interview prior to donation, it is for the person authorised to carry out the selection of donors to assess the possibility of donation in the light of any contraindications and their duration, precedence in time and development, using questions supplementary to the questionnaire prior to the donation"; and
• "The prospective donor shall defer giving blood if he presents a counter indication mentioned in one of the tables set out in Annex II to the present decree…"

Annex II to the French Decree provided that a man that "has had sexual relations with another man" constitutes a permanent contraindication to the donation of blood thereby resulting in a permanent deferral.

Mr Léger argued that the French Decree conflicted with Annex III to the European Commission Directive 2004/33 (The Directive) which provides:

• that "persons whose sexual behaviour puts them at a high risk of acquiring severe infectious diseases that can be transmitted by blood…" can be permanently deferred from donating blood; and
• that "[p]ersons whose behaviour or activity places them at risk of acquiring infectious diseases that may be transmitted by blood…" may be temporarily deferred from donating blood until the risk of disease has subsided, especially as determined by any testing for that particular disease.

The Question before the Court of Justice of the European Communities

The Administrative Court of Strasbourg stayed the proceedings and referred the following question to the Court of Justice of the European Communities (the Court) for determination:

• Does the fact that a man has had sex with another man, constitute, in and of itself, conduct placing him at risk of acquiring "severe infectious diseases that can be transmitted by blood" thereby justifying a permanent deferral from donating blood or does it only justify a "'…temporary deferral from blood donation for a period determined after cessation of the risk behaviour?'"

Decision

Two different risk thresholds for permanent versus temporary deferrals of a prospective blood donor under The Directive

The question presented to the Court necessitated the resolution of a language inconsistency arising in Annex III of The Directive amongst the various language versions of The Directive. In the French version, both the permanent and temporary deferral of a blood donor merely required the presence of a "risk" of "severe infectious diseases that can be transmitted by blood". In the vast majority of the other language versions (including English), there need have only been a "risk" to justify a temporary deferral of a blood donor while a permanent deferral required a "high risk".

In accordance with EU case-law, the differences arising in the varying language versions required resolution by the Court. The Court in resolving the matter decided that it would be illogical for the Commission to create two different levels of deferral (ie permanent and temporary) both triggered by the same level of risk. Consequently, the Court decided that the Commission intended a stricter prohibition, the permanent deferral, to be triggered by a "high risk" while the temporary deferral would be triggered by a mere "risk".

Is a permanent deferral justifiable under EU law?

The Court determined that the language of "…'persons whose sexual behaviour puts them at risk'…" in The Directive does provide a degree of member state discretion to determine what kinds of sexual behaviour place a person at risk, but legislation by member states implementing EU directives must comply with the Charter of Fundamental Rights of the European Union (the Charter) including provisions that prohibit discrimination based upon sexual orientation.

The Court did not decide whether the permanent deferral was consistent with EU law, referring the question to the referring court. However, the Court did set out the steps and issues that the referring court must consider in making its determination.

The referring court must first ascertain whether men who have sex with men are in fact at a high risk of contracting a blood borne severe infectious disease. This will depend on current epidemiological data for that country.

If the data does indicate a high risk of contracting a severe infectious disease among men who have sex with men, the referring court must then determine whether, and under what conditions, a permanent deferral will be compatible with fundamental rights.

The Court held that the current permanent deferral may discriminate against men on the basis of sexual orientation within the meaning of Article 21(1) of the Charter.

Article 52(1) of the Charter provides that rights under the Charter may be limited if they meet the following two-limb test:

• the limitations are "necessary and genuinely meet the objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others…"; and
• the means used to achieve those objectives must be proportional to the objectives to be achieved.

Under the first limb, the Court decided that the permanent deferral on the donation of blood by men who have sex with men in order to minimise the risk of the spread of infectious diseases achieves the "general objective of ensuring a high level of human health protection" as set out in Articles 152 and 154(4) and (5) of the Treaty Establishing the European Commission (the Treaty). Further, Article 35 of the Charter provides that the protection of human health must be "ensured" in all European Union policies and activities.

Under the second limb, the Court queried whether there were less intrusive means of achieving the intended objective of reducing the risk of the spread of infectious diseases like HIV. The Court stated that there is a period of time after which someone has contracted HIV where infection is not detectable by current testing methods. Consequently, the Court queried whether more effective testing techniques exist that could be used, thereby creating an alternative to the burdensome permanent deferral. In the event that such testing techniques do not exist, the Court queried whether there were other less intrusive means than a permanent deferral. The Court also queried whether a doctor at a blood donation centre could more rigorously determine whether a less onerous means exist for any particular donor by asking the donor more questions.

Commentary

The ruling by the Court indicates that imposing a permanent deferral on men who have sex with men may be justifiable in certain circumstances. However the discussion by the Court regarding the many different alternatives to permanent deferral seem to indicate such circumstances would be rare. 

In July of 2015, the US Food and Drug Administration recommended reducing its indefinite ban to one year. The UK, Australia and New Zealand impose one year bans on blood donations for men that have had sex with another man. In Australia, the ban is irrespective of the whether the donor has used prophylactic during the sexual encounters.

In 2009, Michael Cain brought a case before the Tasmanian Anti-Discrimination Tribunal arguing that The Australian Red Cross Society discriminated on the basis of sexual orientation by deferring his blood donation. The Tribunal found that there had been no discrimination and that the higher risk of HIV transmission for men who have sex with men justifies the one year deferral.

While "risk" is often mentioned in the case law on the issue, it is rarer to find actual statistics on the prevalence or the quantification of risk. In the aforementioned case, the Tribunal was referred to statistics and mathematical modelling produced by Professor Kaldor on the incidence of HIV for varying groups of men. It is important to note that Professor Kaldor was called to give evidence by the Tribunal itself rather than the parties. He adduced more evidence which can be found here.

The decision can be found here.

Patrick McGlynn is a Graduate at DLA Piper.