Biased blood?

Photo by LuAnn Hunt on Unsplash

Yesterday, I tuned into Jeremy Vine’s daily show on BBC Radio 2 while out in the car and happened to catch an interesting discussion about potential discrimination and blood donation.

Ethan Spibey was a guest on the show and he was discussing his campaign to make it easier for gay and bisexual men to make regular blood donations. Mr Spibey is involved in a campaigning organisation called Freedom to Donate.

Readers of this Blog will be aware that I often discuss examples of actual or potential discrimination in terms of the Equality Act 2010.

Mr Spibey’s contribution to the Jeremy Vine show got me thinking about an issue – to which I readily confess hadn’t featured much on my radar previously: was the requirement or condition imposed by the NHS in this country making gay or bisexual men abstain from sex for 3 months before they are permitted to give blood an example of discriminatory treatment?

A link to Freedom to Donate’s Twitter account can be found below:

https://twitter.com/FreedomToDonate

The discussion about restrictions on who can give blood got me thinking: would this be an example of direct and/or indirect discrimination in terms of Sections 13 and 19 respectively of the Equality Act 2010?

Direct discrimination occurs when someone experiences unlawful, less favourable treatment because they possess a protected characteristic (in this situation: sexual orientation).

As we shall see, gay and bisexual men are certainly placed at a distinct disadvantage in regarding the current restrictions on blood donation when comparing their situation to that of heterosexuals.

The National Health Service (NHS) is also applying a practice criterion or policy (PCP) which has a disproportionately adverse effect on men who are gay or bisexual.

Section 19 of the Equality Act defines indirect discrimination in the following terms:

A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.’

Section 19(2) makes it very clear what it is meant by a discriminatory provision, criterion or practice in relation to a relevant protected characteristic:

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

In 2017, to much fanfare, NHS England announced that the previous 12 month abstention period for gay and bisexual men had been reduced to the current period of 3 months.

A link to a press release from NHS England can be found below:

https://www.blood.co.uk/news-and-campaigns/news-and-statements/blood-donation-rules-have-changed/

NHS Scotland also operates a similar approach as can be seen from the link below (click on the section entitled Sexual relations):

https://www.scotblood.co.uk/giving-blood/can-i-give-blood/

Apparently, all blood donors are asked about their sexual orientation as part of the screening process. However … if you are a gay or bisexual man, then you are asked further questions about your sex life.

Needless to say this requirement does not apply to individuals whose stated sexual orientation is heterosexual.

Now, Ethan Spibey conceded that the paramount duty of the NHS was to ensure the safety of blood donations, but he was firmly of the view that heterosexuals could pose just as much of a threat to the health and safety of the beneficiary.

Are gay and bisexual men suffering as a result of a hangover from the 1980s when the fear of AIDS and HIV was omnipresent as the rather grim public information film from the time demonstrates?:

The current approach to blood donations, as campaigners like Mr Spibey would argue, results in a blanket policy which has a disproportionately adverse effect on gay and bisexual men. A person’s sexual orientation is, of course, a protected characteristic in terms of Sections 4 and 12 of the Equality Act 2010.

Health and safety can be used as an objective justification to defeat claims of discrimination, but it must be a credible defence. Do gay and bisexual men represent a greater threat to the safety and security of the nation’s blood supply? Clearly, the scientific evidence would have to be objective and credible to sustain this argument.

After listening to Mr Spibey, I was left with the impression that the scientific evidence for treating this group of people differently might not be so clear cut.

A link to a discussion on the BBC website about the issue can be found below:

https://www.bbc.co.uk/news/health-48598461

Copyright Seán J Crossan, 6 December 2019

Published by

sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. I am a graduate and postgraduate of the Universities of Dundee, London and Strathclyde. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult a suitably qualified Scottish solicitor who will be able to provide you with the support that you require.

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