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.