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A Royal Decree, regulating the organisation of blood donations, demands that each donor fill in and sign a medical questionnaire regarding his health conditions. One of the permanent exclusionary criteria refers to sexual behaviour: “persons who, as a consequence of their sexual behaviour, have a great risk of contracting infectious diseases that are transmitted through the blood (author’s translation)”. Instead, it refers to a list of exclusionary criteria, to be found in its Annex. The applicable Law does not explicitly ban them from donating blood. Men who have sex with men are permanently excluded from donating blood in Belgium. And he should have not made his point by lying on the questionnaire.” The Flandres Red Cross, the main responsible body for the organisation of blood donations in Flandres, reacted: “ is not being refused because he is gay, but because he has sex with a man. He reported on Twitter that he finds the rule excluding homosexual men from donating blood “foolish and homophobe”.
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The radio presenter lied to make a point. He indicated on the questionnaire that he has not had sex with men, although he is homosexual and married to his partner. Recently, the Belgian media reported on a case involving a radio presenter who admitted that he has repeatedly lied on the questionnaire that every blood donor needs to fill out prior to donation. Obviously, the Court not having ruled on this issue, what follows is based on my interpretation of the Court’s discrimination case-law, combined with ideas on how a homosexual applicant may argue a hypothetical case in front of it. But who is in the right here? Who has the law, and more particularly European human rights law, on its side? In this post I will attempt to offer a possible answer to these questions through the lens of the case-law of the European Court of Human Rights. Reasonable arguments are invoked on each side of the blood donation debate: a concern for public health on one side and a struggle against stereotyping and discrimination on the other. That is what I intend to find out in this post.
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To be more precise, not homosexual men are permanently excluded from donating blood, but “men who have sex with men”. In Belgium, as in many other European countries, homosexual men are not allowed to donate blood. Blood Donations and the Permanent Exclusion of “Men Who Have Sex with Men”