Advocate General of the Court of Justice of the EU believes that gay men can donate blood

In an ECJ press release of the 17 July, the Advocate General Mengozzi stated that for him a sexual relationship between two men does not constitute conduct that justifies permanent exclusion from giving blood. He gave his opinion to a pending case in which a Frenchman challenged French legislation, which he claims to be conflicting with an EU directive. On 29 April 2009 Mr. Leger wished to make a blood donation at the Etablissement francais du sang (French Blood Agency), which a doctor denied him on the grounds that Mr. Leger was homosexual and that French law permanently excludes men who have had, or have, sexual relations with other men from giving blood. EU legislation regarding the technical requirements for blood states that persons whose sexual behavior puts them at high risk of contracting sever infectious diseases that can be transmitted by blood are permanently excluded from giving blood.

 “Sexual behavior” was in this case not further defined, however, Mr.Mengozzi claims that it is determined by the specific circumstances in which sexual relations take place and defines how an individual behaves. Thus, the mere fact that a man had, or has, sexual relations with another man does not constitute behavior for the purpose of the Directive. Even though the FEU Treaty gives freedom to the Member States to maintain or lay down more stringent protective measures than those laid down in the directive, this freedom ends as soon as conflicts with primary EU law and in particular when fundamental rights and freedoms are threatened. By definitively excluding every man, who has had, or has, sexual relations with another man from giving blood, the French legislation however introduces obvious indirect discrimination on the combined bases of gender (men) and of sexual orientation (homosexuality and bisexuality).  However, the Advocate General´s Opinion is not binding on the Court if Justice and judgment for the case will be given at a later date.

Court of Justice of the European Union – PRESS RELEASE (17.07.2014.)

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