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French blood bank wrong to track sexual orientation of donors, rights court rules

The Frenchman who brought the case was first denied the opportunity to donate blood in 2004 after he refused to answer a question about whether he had sex with men.

STRASBOURG, France (CN) — Europe’s top rights court on Thursday sided with a man who was repeatedly turned away from donating blood in France after he refused to disclose information about his sex life nearly 20 years ago. 

In a ruling only available in French, the European Court of Human Rights agreed that the French Blood Establishment, the national blood bank of France, violated the privacy rights of Laurent Drelon by tracking his supposed sexual orientation. 

Drelon first tried to donate blood in 2004. He refused to answer a questionnaire given to all potential donors about whether he had ever had sex with another man. He was listed as homosexual in his donor file and was turned away. 

The now 52-year-old tried to donate blood again in 2006 and 2016 but was rejected because his file listed him as gay. During his 2016 attempt, he provided test results showing he was HIV negative but was still refused. A doctor at the blood bank told Drelon his file indicated he was gay and therefore he could not donate. 

France banned blood donations from gay men in 1983 over worries about the transmission risk of HIV/AIDS. Proponents of the ban say that gay men have a higher risk for HIV but LGBT advocates say such bans are simply driven by homophobia. 

Drelon complained to a court in Paris in 2007. Ultimately the Court of Cassation concluded his donation ban was not discrimination, finding that storing the sexual orientation information was an important part of medical safety. He then brought his complaint to the Strasbourg-based European Court of Human Rights.

The court, created in 1959 to safeguard the civil and political rights of Europeans, found that the retention of the data was excessive and the presumption that Drelon was gay based on his refusal to answer a question was inappropriate.

“It is inappropriate to collect personal data relating to sexual practices and sexual orientation on the sole basis of speculation or presumption,” the Fifth Section wrote. 

By keeping his data, the rights court found, the blood bank violated Article 5 of the European Convention of Human Rights, which guarantees a right to liberty and security. Due to the particularly sensitive nature of sexual orientation, the court said France should have paid especially close attention to ensuring the information was obtained and stored correctly. The information was “collected and stored without the applicant's express consent – which the respondent Government does not dispute,” the ruling states.

The judges focused only on the 2016 rejection, deciding that his 2004 and 2006 denials were beyond the time limit for court review.

The rights court awarded Drelon 12,000 euros ($11,945) in damages.

“It's a great victory,” Drelon’s lawyer Patrice Spinosi told Courthouse News in an emailed statement.

In 2016, France lifted the ban for men who hadn’t had sex with another man for the proceeding 12 months before ultimately scrapping the question entirely in 2019. 

The United States also restricts blood donation from men who have sex with other men. The Food and Drug Administration changed its advice in 2020 to say that men who have had sex with men in the previous three months should not donate blood, lifting the previous lifetime ban. 

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