September 4, 2015

Ivana Isailovic (McGill) and Uladzislau Belavusau (VU Amsterdam) on the Léger Decision

New network member Ivana Isailovic (McGill) has written to share the contribution below, cross-posted from the European Law Blog. Entitled "Gay Blood: Bad Blood? A Brief Analysis of the Léger Case," and co-authored by Ivana and Uladzislau Belavusau (VU Amsterdam), the piece explores the ways in which the decision -- raising as it does complex and interrelated issues of sexuality, public health, discrimination, and citizenship -- constitutes a missed opportunity.

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In April 2015, the 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 (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 EU multi-level health governance, including the rising area of sexual risk regulation, as well as questions regarding EU sexual citizenship, and more particularly discrimination against 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, the Ministerial Decree reaffirmed this ban. It provides 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 behavior. The Directive refers to “persons whose sexual behavior 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 to answer whether permanent exclusion of MSM from blood donation is justifiable in the light of a high risk of infectious disease. 

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 it be the case, the domestic court needs to examine then if the permanent deferral is compatible with EU fundamental rights protected by the EU Charter and in particular with the equality principle (para. 45). Regarding this issue, 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 – here 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 answers 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. Second, should these techniques be not available, the French ban does not pass the proportionality test if there are 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 behavior 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 assess whether the individual has been 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 finally legalized same sex marriages, shedding light on remaining legal exclusions faced by the gay population. François Hollande promised during his election 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), recommends improving the individual questionnaire which will allow health practitioners to evaluate whether the sexual behavior of an individual male donor who has, or has had, 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.

Critical Assessment

We briefly stress two problematic points in this 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 its AG Mengozzi, the Court does not mention the Art. 19 TFEU which gives the EU power to tackle discrimination on the ground of sexuality. In addition, it does not refer 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 originally targeted both groups of homosexuals and bisexual men: in other words, 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 has 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 with 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 three months 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 intercourse, including singular occasions or those occurring, for example, half a year before the blood donation, should necessarily exclude this category of people from donation? Likewise, the Court seems to back French ban’s focus on sexuality while the directive specifically mentions sexual behavior. 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 the MSM population in particular relies on culturally 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 gay persons as “dangerous” or social outcasts.

The European Court of Justice missed therefore a timely occasion to explain why – both legally and politically – such policies are discriminatory and humiliating.

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