A High Court judge has ruled that the ban in Northern Ireland on gay men giving blood is "irrational." The judge, Justice Treacy, also held that Health Minister Edwin Poots breached the ministerial code by failing to take the issue before the Stormont Executive.
A prohibition on gay blood donation was put into place during the AIDS threat in the 1980s. In November 2011, the ban was lifted in England, Scotland and Wales and replaced by new rules, allowing blood from men whose last sexual encounter with another man exceeded 12 months, reports U.TV.
Following a Government Advisory Committee report identifying a much shorter period during which infection with blood-borne viruses could not be detected, the 12-month deferral was left in place. In Northern Ireland, Poots maintained the lifetime ban on the grounds of public safety.
The minister had said previously of the issue,"I think that people who engage in high risk sexual behavior in general should be excluded from giving blood… And so someone who has sex with somebody in Africa or sex with prostitutes, I am very reluctant about those people being able to give blood."
A gay man, who chose to remain anonymous, launched a judicial review challenging the prohibition. Lawyers for the man had revealed that the man is now a Christian who is opposed to homosexual activity.
"Although the applicant, perhaps curiously in these circumstances, shares the view that homosexual practice is wrong, he simply takes the view that homosexuals should not be banned from giving blood," David Scoffield QC had said earlier in the case, according to the Belfast Telegraph.
"The applicant's case is that the approach displayed by the Minister on this issue goes beyond the expression of orthodox religious views and amounts to prejudice."
Attorney General John Larkin QC, chief legal adviser to the Stormont Executive, questioned the legitimacy of the man's challenge because he had previously had sex for money. Larkin also rejected arguments that the matter required full Executive approval and questioned whether the Minister had made a decision to maintain the current ban.
Justice Treacy concluded that Poots decision to continue the lifetime policy was made against the recommendation by the Secretary of State that the report from the advisory committee on the Safety of Blood, Tissues and Organs (SaBTO) should be followed.
"The Minister has decided that MSM (males who have sex with other males) behaviour creates such a high risk of infection to the donor that such donors must be permanently deferred, with the result that such blood cannot enter the Northern Ireland blood stock," said the judge.
"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."
In regards to the alleged breach of the Ministerial Code, Justice Treacy said the lifetime ban was "both controversial and cross-cutting, taking in equality issues" reports U.TV.
He said, "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."
The Department of Health said Poots would "read and consider" the verdict.
The verdict represents a major victory for those seeking equal status with the rest of the UK.
John O'Doherty of the Rainbow Project said that Poots' decision had outraged many in Northern Ireland.
"This ruling is a shocking indictment of the conduct of Minister Poots, who has proven himself incapable of separating his personal prejudices from his public responsibilities," he said.
He added that the organization he represents was now looking forward to the overturning of the ban.
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