Institute of Legal and Management Studies

During the hearing of the pleas challenging the blanket ban on blood donations by transgender persons, gay men, sex workers, etc., the Supreme Court today asked the Union to seek expert opinion on how to do away with the "discriminatory element" of National Blood Transfusion Council's guidelines without compromising medical safety and precautionary safeguards in place.

A bench of Justices Surya Kant and N Kotiswar Singh heard the matter. Conveying his concerns to Additional Solicitor General Aishwarya Bhati, J Singh said,

"What is worrying me is, are we going to brand all transgenders as risky and thus indirectly stigmatize these communities? Unless you can show with some medical evidence that there is some kind of link between transgenders and these diseases. You can't [say] all transgenders are involved in those kind of activities, even normal persons engage in such activities..."

On the ASG's submission that the guidelines challenged were issued by Blood Transfusion Council of India being of the view that normally blood donation from these categories should not be taken as they are high-risk, the judge added, "Aren't we creating a kind of segregated group? [This way] stigma, biases and prejudices are enhanced...".

Ultimately, Justice Kant opined that the issue is something only experts can advise on. "You please have a talk with them so that as a community, they are not stigmatized. At the same time, all medical precautions can remain in force", the judge told Bhati.

Briefly put, the pleas assail "Guidelines on Blood Donor Selection and Blood Donor Referral, 2017" issued by the National Blood Transfusion Council and the National Aids Control Organization under the aegis of Central Health Ministry. Clauses 12 and 51 of the said guidelines consider transgender persons, gay men and female sex workers as belonging to high-risk HIV/AIDS category and prohibit them from donating blood.

There are 3 petitions pending before the Court, all filed by members of the LGBTQ+ community viz. Sharif D Rangnekar (author and former journalist), Thangjam Santa Singh (activist) and Harish Iyer (activist).

In one of the cases (Thangjam Santa Singh), the Centre has filed an affidavit stating that there is substantial evidence to demonstrate that 'transgender persons, men having sex with men and female sex workers are at risk for HIV, Hepatitis B or C infections'. It further claims that that the determination of the population group that is to be precluded from being blood donors is prescribed by the NBTC (a body comprising medical and scientific experts) and is based on scientific evidence. The affidavit also avers that the issues raised fall within the ambit of the executive and are required to be considered from a public health perspective rather than an individual rights perspective.

On the other hand, as per the petitioners, the 2017 guidelines infringe on the fundamental rights to equality, dignity, and life of members of the LGBTQ+ community as well as female sex workers. It is asserted that exclusion of the above class of persons, solely on the basis of their gender identities/ sexual orientation, is not only unreasonable but also unscientific.

The petitioners aver that many countries, including the United States, United Kingdom and Canada have changed their rules to allow gay men to donate blood. The ban is based on outdated and biased views from the 1980s, following which medical technology has greatly improved, especially in blood screening, the petitioners state.

In one of the petitions (Sharif D Rangnekar), a prayer has also been made for new guidelines that would allow gay men to donate blood, with some reasonable restrictions. It suggests public campaigns to inform society about risky behaviors and the updated guidelines. The petitioner also seeks changes in the syllabus of medical students in order to sensitize that gay men can donate blood.

Story to be updated.

Case Title: THANGJAM SANTA SINGH @ SANTA KHURAI Versus UNION OF INDIA AND ORS., W.P.(C) No. 275/2021 (and connected matters)