A Legal Challenge to Permanent Deferrals for Men who Have Sex with Men (MSM) Donating Blood

Kevin Flood

Senior Sophister LL.B. Student of Trinity College, Dublin

There are a number of reasons people choose to donate blood. Some see it as a “civic duty”, while others view it as an act of altruism or a way of giving back to their community. It is a valuable and indispensable service heavily reliant on the good will and commitment of donors and one that largely goes unnoticed until there is a crisis.

As is the case with any area of public health, precautions are required to be taken when taking blood. When entering a blood donor clinic, donors must complete an application form each time they donate. They are informed of a long list of scenarios that will result in a temporary ban. These include seemingly mundane aspects of everyday life, such as travelling to a foreign country or getting a body piercing. There is one exclusion, however, that particularly stands out, that is, the ban on sexually active gay men donating blood. This long standing ban has become the subject of a legal challenge, with a hearing to come before the High Court in April of 2016.

 

History of the ban and the Irish Blood Transfusion Service

The ban on the donation of blood by gay men was introduced in response to the AIDS epidemic during the 1980s. In the early years of the crisis, there was no reliable test to detect AIDS when screening blood. As a precaution, high risk groups were identified and permanently banned from donating.

The Irish Blood Transfusion Service (IBTS), the body responsible for blood donations in the State, insists that the ban remains necessary. The IBTS website states that,

In order to assure the continued safety of the blood supply, we currently ask those people who may have a particularly high risk of carrying blood-borne viruses not to give blood.  This includes men who have ever had sex with another man / men. The reason for this exclusion rests on specific sexual behaviour (such as anal and oral sex). There is no exclusion of gay men who have never had sex with a man nor of women who have sex with women.  The decision is not based on sexuality or orientation, only specific actions.[1]

The justification offered by the IBTS for this stance is that ‘the primary requirement is to protect recipients’.[2] They acknowledge that donors need a certain level of attention paid to them but still find that a permanent ban is needed.

 

The Ban

The question asked is; ‘IF YOU ARE MALE, have you EVER had oral or anal sex with another male – with or without a condom or other form of protection?’[3] If the answer to this question is yes, the effects are lifelong; answering yes to this question prevents a man from donating blood. This is in line with the procedures in place in Northern Ireland (although there are murmurings of a possible change),[4] but few countries have an outright ban. The United States and the United Kingdom (excluding NI) have a one year deferral policy in place whereas the majority of European Union members have no deferral in place.

 

The Challenge

On the 27th of July 2015, Mr Tomás Heneghan launched Judicial Review proceedings against the Irish Blood Transfusion Service, the Minister for Health, the Attorney General and Ireland.

The basis for this challenge arose when Mr Heneghan attended the D’Olier Street clinic in Dublin to give blood and answered in the affirmative for the sexual contact with men question.[5] The Health Service Executive categorised the sexual activity engaged in as low risk and Mr Heneghan produced test results showing he had tested negative for all sexually transmitted infections. Despite these considerations, Mr Heneghan was refused the opportunity to donate blood.

A challenge has been brought by Mr Heneghan on the basis that the rigid IBTS policy is in breach of European Union law in its failure to proportionally analyse the individual’s risk. It is claimed the policy is discriminatory in application due to the fact account is not taken of contextual factors such as the nature of sexual activity, the time elapsed since the sexual activity or the risk of transmission of a disease.

 

This case will have potential implications for the administrative practices of blood donation services and the individuals wishing to engage with them. If found in favour of Mr Heneghan it will widen the pool of potential blood donors in Ireland, possibly saving help saving lives in the process. What is certain is that the case will challenge a measure that discriminates on the basis of sexuality. Whether or not this is justified will be examined over the coming months.

 

References

[1] Irish Blood Transfusion Services, “Exclusion of Men who have Sex with Men from Blood Donation” <https://www.giveblood.ie/Become_a_Donor/Keeping_Blood_Safe/Safety/MSM.html> (accessed 22/02/2016).

[2] ibid.

[3] Donor Health and Lifestyle Questionnaire for Regular Donors (a different form is required for first time donors however but the relevant wording is identical). <https://www.giveblood.ie/Become_a_Donor/Give_Blood/Can_I_Give_Blood/Health_and_lifestyle_regular_donors_blood.pdf&gt; (accessed 22/02/2016).

[4] NI Gay Blood Ban Likely to be Lifted if Advisory Group Recommends, <http://www.bbc.com/news/uk-northern-ireland-35070047&gt; (accessed 22/02/2016).

[5]Colin Lenihan, “KOD Lyons Challenge to Blood Transfusion Services Ban on Donations from Homosexual Males” <http://www.kodlyons.ie/index.php/news/single/kod_lyons_challenge_to_blood_transfusion_services_ban_on_donations_from_hom&gt; (accessed 22/02/2016).

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Alternative Careers in Law

On 18/11/14 TCD FLAC hosted an ‘Alternative Careers in Law’ event, in which numerous speakers from varied career backgrounds, spoke to a packed out global room in the Hamilton about their journeys and career decisions. The key message which was expounded throughout the evening and mentioned by our Chair Gary Hansell in his introduction, was that even within law, our career trajectory is not set in stone.

The first to speak was Senator, Professor and Fellow Ivana Bacik, who spoke of the difficulty in planning a career in law and politics, emphasising that “sometimes things just organically happen.” She talked of the benefits of Chambers in the UK, which provides a framework for work and gives support we don’t have here, whilst being difficult to combine with other work, also noting how it is relatively easy to transfer between jurisdictions as she did. She recommended taking a masters qualification as it is essential for the Irish bar and opens up the option of part time teaching and full time academia.

Secondly, Professor David Kenny addressed the audience about the unpredictability of getting a job in academia as well as the key benefit of having a flexible schedule around teaching commitments. He told us that the path to getting a job in academia roughly involves six steps:

Step 1. Do well in college

Step 2. Do a masters

Step 3. Do a PhD in some topic of law (he described this step as “three years of misery; both satisfying and frustrating”)

Step 4. Start to publish, ideally throughout your PhD

Step 5. Get some teaching experience

Step 6. Hopefully get a teaching position that is open. This is dependent on what universities are hiring and if your profile matches them.

Next, Zse Varga, who works in volunteer management with FLAC, talked about the practical benefits of studying business or management courses and how the skills gained in this kind of training enable you to “make things work.” She also provided with us with information on the history and current workings of FLAC.

Eithne Lynch, who joined us from the Public Interest Law Alliance (PILA), was the next to speak. Although she found working with one of the large Dublin law firms a valuable experience, she realised it wasn’t for her. She spoke of her ongoing involvement as a volunteer in Rule of Law projects in Africa. As a legal officer in PILA, part of her job is to look for strategic opportunities to address lacunas in the law and make change – this is achieved, in part, through strategic litigation which enables PILA to make a real impact.

Next, Edel Quinn, legal and policy officer for the Children’s Rights Alliance spoke to the crowd. She always saw the law as a means of change. She took the New York bar as she felt this was the best international qualification available and got involved working in NGOs. She stressed that if you are in a well run and well financed NGO which is professionally organised “you can have an impact.” In her everyday work, Edel identifies areas of non-compliance with international human rights and lobbies around these issues. Her focus in her work with the Children’s Rights Alliance is the UN Convention of the Rights of the Child. She concluded her talk by telling the audience that they don’t have to go down a route they are uncomfortable with, as she has a rewarding career that she doesn’t consider alternative.

Gareth Noble, partner in KOD Lyons, then spoke about his expansion from criminal defence work into human rights law. Through a merger with another firm, KOD Lyons “took seriously a gap in the market for a proper human rights firm in Ireland”, recognising they “could and should use the law to effect social change.” He spoke of the firm’s assistance NGO sector as being greatly valued as they can provide real expertise. He also spoke of the firms utilisation of the media of Facebook, and how the firm has used it to reach a wider client-base and help a greater number of people.

Brian Collins, a solicitor at the Irish Refugee Council and Law Centre, talked about his journey from being an intern in the IRC to becoming a legal officer and recently qualifying as a solicitor. He described working in an NGO, noting that although it’s all hands on deck all the time and not always 9-5 it’s very rewarding, and commented that “the world is coming to your desk”. In this line of work he said early legal advice is key, as well as strategic litigation. He recommended interning to make connections and become better-known.

The eighth speaker was Laura Butler, who regaled us with the story of how she took the initiative of putting herself forward for a job in a criminal legal aid firm. She heard they were looking for someone to help but didn’t have time to do interviews, so she approached the employer, asked for work and organised her contract on a beer mat! The moral of this story, she told us, was to “keep your ear to the ground.” In talking of her transition to education and later joining the NGO world, she noted that the one thing a law degree gives you is transferability. She spoke about making choices that balance your career and other things in life. She ended by saying: “I am not hugely wealthy, but I am hugely fulfilled from a career perspective.”

Our final speaker was Maria Mullan, a solicitor from the Irish human rights and equality commission, a brand new independent body whose purpose is to protect and promote human rights and equality throughout society. As a legal officer her focus is promoting these aims through legal means, by involvement with proceedings involving human or equality rights. She told the audience that she feels “privileged to be able to use her qualifications to effect change” for individuals who ask for help and the wider society in general. She also noted that there is always time to try something else; you will in time get to experience a challenging, but ultimately very rewarding, career.

The speakers portrayed a real sense that they were in their chosen careers, not because it was what they felt compelled to do but because it involved the kind of work they enjoyed or naturally felt drawn to. A recurring theme was the feeling of job satisfaction and fulfilment. Overall, the evening provided the audience with a range of career choices to consider, outside the normal scope of career choices typically presented to law students, in which a law degree would be equally valued.

Aisling Murray

Direct Provision Talk

On Wednesday 12th November, FLAC hosted a talk on the direct provision system, the subject of a High Court ruling on Friday. The High Court found direct provision not to be unlawful or in breach of the human rights of those in the system. Our speakers seem to have thought otherwise.

Minister of State at the Department of Justice and Equality and Arts, Heritage and the Gaeltacht, Aodhán Ó Ríordáin, spoke about the necessity for equality in society and said that equality should be at the centre of everything that we do. He expressed his desire for reform, something that led to further discussion later in the talk. Ó Ríordáin sees the system as one in which asylum seekers should not spend more than a few months and has set up a working group to make recommendations which should be published early next year. The reform he envisions would do away with the centres ‘basically run by catering companies’ with no expert knowledge of how to help these immigrants who may have been trafficked here or fled violence in their countries of origin. The institutionalisation of the migrants and their regimented daily regimes are not conducive to good mental health or indeed productivity of any form. The Minister, however, also emphasised the hugely varying standards of the direct provision centres scattered around the country ‘Some were decent and some you would not spend an hour in’. At the end of his speech the Minister reiterated his commitment to reform and his hope that subsequent governments would continue to push for improvements in immigrants’ rights.

Patricia Brazil, lecturer in law at Trinity, gave an enlightening speech on the legal basis for direct provision and the arduous process those in the system must endure to secure their right to reside in this country. Until the mid-1990s there was little migration to the country and so cases were dealt with mostly on an ad hoc basis because there was no real need for a legal framework. As a result, legislation was only brought in in 1996. Brazil says Ireland has always been playing catch up, with a crisis mentality that has led to a fragmented and incoherent decision making process. There are three different stages to the process, all must begin in the first and seek leave to remain in the country by a new submission to the Commissioner. The Commissioner is not permitted to look at all aspects or stages in a single hearing.

  1. Refugee status – grounds to remain on a well-founded fear of persecution for race, nationality, political opinion or membership of a political group.
  2. Subsidiary protection – when there are substantial grounds for real risk of serious harm. Mostly occurring in situations of international or internal armed conflict
  3. Humanitarian leave – e.g. illness, if the applicant has been here for a long time and has a family and children here.

 

Judicial review is permitted at each stage and there is a substantial amount because of flaws in many decisions. Direct provision itself was introduced in 1999 to prevent an Article 3 breach and has no statutory basis. The social welfare payment of €19.10 a week for an adult is an arbitrary amount chosen by civil servants because it was low enough not to incentivise people to come to Ireland. It is the only social welfare payment that has not been raised by subsequent governments. On a more personal side, Patricia Brazil spoke about the people in direct provision that she has encountered, and the severe damage the system has done to their overall wellbeing and mental health. She identified the lack of productivity due to the ban on employment as a key contributing factor and recommended that this barrier should be removed.

 

Sue Conlan, CEO of the Irish Refugee Council, also spoke emotively of the harm direct provision has done to the many migrants she has come into contact with since her appointment in 2010. She emphasised how bewildering and terrifying the experience can be for a migrant arriving at the reception centre in Balseskin, where all are sent before dispersal around the country to various centres. Some may not have even heard of Ireland before they arrive, many have no English. It is not uncommon, in fact it is a consistent problem, for the Gardaí to be called as a method of intimidation when a migrant protests at dispersal. Conlan deplores the ‘culture of disbelief’ that has sprung up around asylum claims and noted that with the intense interview process, applicants are likely to make some small omissions or mistakes which are then held against them in the process.

At its worst, the acceptance rate was 1.3% and the appeal success rate 10%. The European average is 25%. Conlan said decision makers can find it hard to imagine the dynamics of another country, and added that many migrants may come from countries where the authorities, especially the police may not be trusted. Now, after much scrutiny, acceptance rates are 10% first instance. She posits that we were probably getting it wrong the whole time.

 

Conflict between the staff and migrants in direct provision facilities were the subject of a piece by the Sunday World recently. The complaints procedure in centres was held by the High Court to be deficient and needing reform. Sue Conlan spoke about the tension and what she identifies as underlying racism of the staff in the particular centre identified in the piece. Staff staged a walk-out after an argument about heating up a baby’s bottle. They then said they were subject to intimidation and did not feel safe in their workplace. Conlan suggested this ‘intimidation’ was an exaggeration and pointed to another example where a prominent figure in the campaign against direct provision was threatened with eviction from her mobile home after her eldest child moved to university in Galway for five days a week. This tension in the system is an unhealthy environment for the children in these centres. Two thirds of the residents of the centre in the Sunday World article are children under 18.

 

In light of the grave problems of system that were presented by our speakers, it seems the equality the Minister spoke of as a hallmark of a developed society is severely lacking in Ireland. Following Friday’s High Court decision, it remains to be seen to what extent the direct provision system will be changed to better protect the rights of those seeking safety and security in our country.

Aisling Hourihane

Tenants’ Rights Talk

On 29th October Trinity FLAC held a talk on the rights and obligations of tenants given by Gary Byrne of Threshold and Frank Brady of the PRTB.

Gary Byrne was first to speak. He provided a very useful summary of the rights and obligations of tenants in private rented accommodation. He explained a number of key rights including the right to exclusive enjoyment of one’s home, the minimum standards of accommodation a tenant can expect, and the entitlement to a rent book He then spoke about the obligations of tenants including the obligation to pay rent in full and on time, to avoid anti-social behaviour and to keep the property n good order.

Byrne noted that a landlord has the right to review the rent after the first 12 months of a tenancy and that a tenancy cannot be reviewed during the first 12 months unless there has been a substantial change made to the nature of the accommodation. A rent review can only happen if 28 days notice is given in writing. The audience were also informed of procedures for ending a tenancy.

Byrne remarked that issues related to deposit retention accounts for a huge amount of Threshold’s work and welcomed proposals to amend the Residential Tenancies Act to create a deposit protection scheme

Frank Brady began his speech with an explanation of the role of the PRTB. The organisation works to resolve disputes and register tenancies. Interestingly, he expressed concern about the proposed deposit protection scheme. He said that under the current system, most deposits are returned quickly and that the proposed change will slow down deposit returns for everybody as each tenant will have to seek the return of their deposit from a third party.

His speech was very informative and useful to students as he explained common problems students have encountered with landlords in his experience and how these disputes are usually resolved. He explained that in deposit retention cases it is very difficult for an adjudicator to find in favour of the tenant when the landlord, as is often the case, has photographs of the property before and after the tenancy as well as invoices for repairs and cleaners. He suggested that tenants should ask their landlord for an inspection before the tenancy ends. For if the landlord refuses to inspect the property, the tenant’s chances before the PRTB increase.

He cautioned the audience against anti-social behaviour as persistent parties or loud music can be grounds for terminating a tenancy and also warned that if something is wrong with the property it does not entitle the tenant to not pay rent.

Fergal McConnon

Budget 2015 Proposals: A Discussion

Vladimir Rakhmanin

Public Relations Officer

Trinity FLAC held a talk on proposals for the new Budget on Tuesday the 6th of October in association with with the Politics Society. The speakers included John Mark McCafferty (Head of Social Justice and Policy at the Society of Saint Vincent de Paul) Cormac Staunton (Policy analyst at TASC (Think-tank for Action on Social Change)), and Bob Jordan (Chief Executive of Threshold).

Among the three various speakers, several themes emerged. Cormac Staunton, for instance, suggested that it is important to not lower taxes in order to protect the most vulnerable members of our society. Austerity is not an excuse to start cutting taxation. He also gave a brief history of what the budget was like in years past, and what it was like today. He stated that tax cuts to stimulate growth is a ‘high-risk’ strategy, a need for public investment and public services, and a re-balancing of the economy. 
John Mark McCafferty spoke of the Budget in the terms of the families his organisation assists. He noted the austerity measures of the past couple of years, and how this can be improved. He stated that certain aspects of our society still need significant investment – for example, a social housing program, or education. McCafferty also noted that it is very important to invest in pre-school education, as this is the foundation that will help children achieve more in the future academic endeavours. The underpinning phrase in his talk was ‘social justice’, something that he believes should be at the core of all policy decisions, that allows people to live with dignity. He stated that social justice should be at the center of the Budget, which will help our recovery. 
Bob Jordan was the last to speak – the core theme of his talk was homelessness. He also noted the important of Free Legal Advice, without which, in his opinion, homelessness would be a much bigger problem. He spoke of Threshold, the organisation he is a part of that attempts to end this problem. Jordan also gave some harrowing accounts of how this issue affects real people, including children, and how those who are without a home as children are more likely to be homeless as adults. All of this led to the point that welfare payments should be a priority, as it could help significantly reduce this issue. Jordan stressed that we should not make the same mistakes again in terms of the Budget – he said that social housing units should be an absolute priority if we are ever going to begin to address the issue of homelessness, a more flexible response from the State, and bypass emergency hostels and shelters (which in some Scandinavian countries are even seen as part of the problem).  

Information on PILA

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Kyrsten Baker 

Ordinary Committee Member

The Public Interest Law Alliance (pila) was established by FLAC in 2009, inspired by a Public Interest Law conference. Like FLAC, it is comprised of individuals seeking to address and raise awareness of public interest law issues. PILA pursues this dual aim in a number of ways:

Hosting seminars and conferences on public law issues.

Publishing a fortnightly PILA bulletin which reports on topical public interest law issues.

Operating a pro-bono referral scheme.

PILA identifies the need for legal advice in NGOs and community law centres and matches these with professionals in accordance with their area of legal expertise. Many large-scale corporate law firms are eager to take on unpaid pro-bono work as part of their Corporate Social Responsibility programmes.

Promoting clinical legal education programmes in law schools.

These programmes afford law students the opportunity to learn practical lawyering skills that cannot be taught in an academic setting. 2013 is the first year of the TCD Clinical Legal Education programme. One SF law student has worked directly with PILA during her placement this semester and made regular contributions to the PILA bulletin.

PILA also seeks to tackle some of the current barriers to public interest litigation, namely:

Costs: Litigants risk being ordered to pay both their own and the opposition’s legal costs if they are unsuccessful.

Standing rules: Under these rules, a court may determine that a litigant does not have a right to bring proceedings in a particular case.

Mootness: Where an individual’s claim is resolved then the larger legal issue on which the claim was based cannot be challenged for the benefit of future litigants.

Lack of class actions: Class actions are only permitted in very limited circumstances in Ireland.

The non-justiciability of socio-economic rights: It is widely believed that the legislature, rather than the courts, should address socio-economic rights.

Further information about public interest law and PILA’s work may be found at www.pila.ie.

Father Peter McVerry Speaks on the Topic of Homeless Rights and Social Justice

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Vladimir Rakhmanin

Web Officer

Yesterday evening, FLAC hosted a talk on the topic of homeless rights and social justice. The talk was given by Father Peter McVerry, who has been fighting for social justice and social rights for several decades.

The talk began with a discussion of the attitude of the general public towards homeless rights. In Ireland, the attitude towards the homeless is mostly negative, due to a visible minority. However, there is a large number of homeless people who are invisible, who are composed of a large spectrum of the population. Father McVerry noted that a lot of them have had disastrous, traumatic childhoods, which often led to drug abuse – these people need our support.

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Threats to Fundamental Rights Online: the Public/Private Nexus

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Joseph Breen-Williams

Ordinary Committee Member

While technology law and public interest law may seem worlds apart, litigation strategy has become a major part of regulating the Internet. This event, which was co-hosted with the DU Pirate Party, sought to expose some of the shadier practices used in technological data retention which interfere with fundamental rights, particularly freedom of expression and the right to privacy. Our speaker, TJ McIntyre is a lecturer in Law in UCD, a practicing solicitor and chairman of the civil rights group Digital Rights Ireland.

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