A top judge has ruled that Northern Ireland’s lifetime ban on gay blood donors is unlawful while at the same time condemning Northern Ireland’s health minister for acting outside of his power to defend the ban.
High Court judge Justice Treacy concluded that Northern Ireland’s lifetime ban on gay blood donors is “irrational” based on several factors, but chiefly that because Northern Ireland imports its blood stocks from much of the rest of the UK, the ban cannot be maintained.
England, Scotland and Wales decided to retire their lifetime bans on men who have sex with men (MSM) donating blood in 2011, opting for a 12 month deferral period. That deferral period, while still needlessly discriminatory for reasons explained here, means that Northern Ireland’s lifetime ban is now routinely being undercut by blood supply imports.
However, Northern Ireland’s health minister Edwin Poots had attempted to defend the ban on grounds that retiring it would pose a significant risk to public health. So, when the rest of the UK switched to the 12 month deferral period, Poots declined to do the same.
This practice was then challenged by an unnamed gay man who said Health Minister Poots, who has previously made several derogatory statements about homosexuality, was letting his personal prejudices bias his role as health minister. Despite Poots trying to have the case dismissed, a judicial review was granted.
In an interesting twist, that man challenging the law is now a born again Christian who believes homosexuality is sinful, but because he is still affected by the lifetime ban, the challenge remains very much viable.
Justice Treacy, having reviewed the secretary of state’s recommendation to follow the advisory committee on the Safety of Blood, Tissues and Organs’ findings that a 12 month deferral period was appropriate, said he found the risks in switching to be minimal, and that Poots had demonstrated a very clear “defect” in his reasoning by maintaining the ban while failing to challenge the importing of blood from the rest of the UK, saying:
“Importing blood from other places which do accept MSM donors, even in limited quantities, leaves the door open for MSM blood to do just that. There is clearly a defect in reason here. … If there is a genuine concern about the safety of MSM-donated blood, such that the blood stock must be protected absolutely from such blood, then the security of that blood must actually be maintained absolutely.”
As to the second point, whether Poots had actually breached the ministerial code in maintaining the ban, Justice Treacy found that Poots had indeed acted beyond the remit of his power:
“As such the minister had no authority to act without bringing them to the attention of the Executive Committee which he failed to do. In doing so the minister breached the ministerial code and… had no legal authority to take a decision in breach of the ministerial code.”
Somewhat related is that Poots is currently fighting a legal battle to prevent same-sex couples in a civil partnership from being able to adopt, after a High Court ruling said that Northern Ireland’s ban on same-sex couples adopting was unlawful and, again, out of step with the rest of the UK.
Poots, arguing the ban is necessary in order to protect child welfare, has already spent £40,000 ($63,872) to have that decision reviewed and, despite so far losing his legal fight, appears willing to spend even more money to take the matter before the supreme court. Adding this to the cost of his war on gay blood donors, Poots is believed to have spent around £100,000 ($159,770).
There are now several calls for Poots to resign or, at the very least, to end this fight.
The ruling relating to gay blood donors and same-sex couples adopting is interesting in a wider context. Northern Ireland has in recent years resisted gay rights measures brought in to force by the rest of the UK. Now, with England, Wales and Scotland all about to legalize marriage equality, Northern Ireland stands alone in resisting this change.
There is currently no Europe-wide ruling recognizing a right to marry for same-sex couples, however the courts seem to be giving particular weight to how the rest of the UK behaves in terms of the rights it offers same-sex couples — and, given Northern Ireland’s intertwined politics with the rest of the UK, this isn’t surprising. It is, however, useful for gay rights because it means that even with an intransigent conservative parliament in Northern Ireland, there is still scope for change. As such, the blood donor ruling may help to add weight to Amnesty International’s legal case to force Northern Ireland to recognize marriage equality via the courts.
Importing equality isn’t particularly desirable, nor is it pretty, but for Northern Ireland’s gay community, it does seem to be working.
Photo credit: Thinkstock.