Fachin says that restricting blood donation by gay men is discrimination.

Brazil Agency - Brazilian Supreme Court Justice Edson Fachin voted today (19) for the unconstitutionality of rules from the Ministry of Health and the National Health Surveillance Agency (Anvisa) that prohibit homosexual men from donating blood for 12 months after their last sexual intercourse. After Fachin's statement, who is the rapporteur for the case, the session was suspended, and the trial is expected to resume next Wednesday (25). Ten justices' votes are still needed.

The trial was prompted by a lawsuit filed by the Attorney General's Office (PGR) in June of last year. The lawsuit questions the validity of the regulations of the Ministry of Health and Anvisa (Brazilian Health Regulatory Agency) that "provide for the temporary ineligibility of male individuals who have had sexual relations with other individuals of the same sex to donate blood in the 12 months following such practice."

According to the prosecutor's office, the resolutions and ordinances that created rules for blood donation by homosexuals are discriminatory.

In his vote, the rapporteur understood that the rules cannot exclude homosexuals from exercising their citizenship by donating blood. According to Fachin, the preventive exclusion of any group of people is unconstitutional. Furthermore, blood quality control should be done through appropriate tests, and not based on sexual orientation, according to the minister.

"Establishing risk groups based on non-risk behavior constitutes discrimination, as it relies on an excessive consequentialist interpretation based solely on sexual orientation," the minister stated.

Next week, the ministers Alexandre de Moraes, Luís Roberto Barroso, Rosa Weber, Luiz Fux, Dias Toffoli, Ricardo Lewandowski, Gilmar Mendes, Marco Aurélio, Celso de Mello, and the president of the Court, Cármen Lúcia, are expected to vote.

During the trial, several entities spoke out, all against the rules. Speaking for the Brazilian Institute of Family Law, lawyer Patrícia Gorisch said that the prohibition is based on the principle that homosexuals are promiscuous and transforms them into "second-class citizens."

"These people go to blood banks to help others, to exercise their right as citizens, and they leave with a 'no,' simply because of who they are. This is completely contrary to international human rights treaties," he said.

According to public defender Gustavo da Silva, representative of the Federal Public Defender's Office (DPU), the regulation has brought back the old term "risk group" and links sexually transmitted diseases only to homosexuals. For the defender, the issue is currently treated as risky behavior, which also applies to heterosexual men.

"The great challenge in anti-discrimination struggles is to seek out the subtleties underlying seemingly harmless discourses," he stated.

During today's hearing, there were no oral statements from Anvisa or the Ministry of Health. In information sent to the Supreme Court last year to support Justice Fachin's vote, Anvisa stated that it follows international scientific information to establish standards and that the rules for blood donation comply with the principles of precaution and protection of health.

At the time, the agency stated that homosexual men are not prohibited from donating blood, provided they meet the clinical screening requirements.