It’s now up to the 28 members of the European Court of Justice to decide whether France’s lifetime ban on gay men donating blood will stand or fall.
Advocate General Paolo Mengozzi, from the European Court of Justice, judged that France’s ban is illegal because it prohibits donations from men simply because they’ve had sex with other men and he found that is effectively a discriminatory policy targeting people based on their gender and sexual orientation.
Mengozzi's opinion isn’t binding, but the positions of advocate generals are frequently adopted by the court. If the justices back his opinion, France could be forced to drop its ban.
“The French rules consider (homosexual sex) an indisputable presumption of exposure to an elevated risk, independent of the conditions of and the frequency of relations or practices,” Mengozzi wrote. “France’s criteria is thus too broad and too generic.”
Permanent blood donation bans are OK under European Union rules, but only for people whose risky sexual practices put them at greater risk of contracting dangerous diseases, which could then be passed to others through their blood.
At it stands today, men in France who acknowledge, in a mandatory pre-donation interview, ever having sex with another man are automatically and permanently banned from giving blood.
The ban stems from a 1983 law based on statistics that showed there was a prevalence of the HIV virus among homosexuals and the fact that the virus is not always picked up if blood tests take place immediately after transmission.
Ludovic Saulnier, a doctor and leader in gay rights group SOS Homophobie told The Local previously the law is arcane and in urgent need of repeal.
“There is still this stereotypical image of all gay men having AIDS, which comes from the 1980s. People simply thought AIDS was a gay man’s disease and we are stuck with that view today.
He added: “Most gay couples are simply like any other heterosexual couples in terms of their sexual practices.”