Trans and gay people, women sex workers can’t donate blood: What the Centre said in SC

What do the 2017 Guidelines say?

The governing body of NBTC, in its 26th meeting on June 1, 2017, approved the Guidelines to bring in a Blood Transfusion Service which offers a “safe, sufficient and timely supply of blood and blood components to those in need.” The guidelines were designed to promote best practices in Blood Transfusion Sercives to ensure donations from the “lowest risk donors possible”.

In the present case, clauses 12 and 51 of the Guidelines are being challenged as “violative of Articles 14, 15 and 21 of the Constitution of India to the extent they exclude transgender persons, men having sex with men and female sex workers from being blood donors”.

Clause 12 of the Guidelines is titled ‘Risk Behavior” falls under the “Blood Donor Selection Criteria’, and mandates that the donor be free from any determinable disease transmissible by blood transfusion and “not be a person considered at risk for HIV, Hepatitis B or C infections”, such as transgender and gay people, female sex workers, injecting drug users, persons with multiple sexual partners or any other high risk, determined by the medical officer deciding their fitness for blood donation.

Further, Clause 15 permanently defers those “at risk for HIV infection”, including gay and transgender people, from donating blood. Permanent deferral refers to blood donors who will never be allowed to donate blood

What is the present plea about?

The present PIL titled ‘Thangjam Santa Singh v. Union of India’ was filed in 2021 by a Manipur-based transgender rights activist, challenging the constitutional validity of the 2017 Guidelines that bar transgender and gay persons from donating blood.

Thangjam moved the Apex Court contending that such exclusion based on one’s gender identity and sexual orientation is “completely arbitrary, unreasonable, and discriminatory and also unscientific.” The plea adds that since the blood is tested for infectious diseases like AIDS/ HIV, Hepatitis C, and B; permanently excluding persons based on their sexual preference violates their right to equality.

During COVID-19, many people needing blood were unable to get it from their trans relatives or loved ones, owing to the Guidelines that contravene the SC rulings in the ‘Navtej Johar’ & ‘NALSA’ cases, the plea adds.

What did the Apex Court say in NALSA & Navtej rulings?

The Supreme Court in ‘NALSA v Union of India’ (2014) and ‘Navtej Singh Johar v Union of India’ (2018) held discrimination on the basis of sex under Article 15 to include gender-based discrimination and sexual orientation-based discrimination.

In ‘NALSA’, the Court held that discrimination on grounds of sex under Articles 15 and 16 would include discrimination on grounds of gender as well. “Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender, ” the Court said.

Meanwhile, in ‘Navtej Singh’, the Court observed that LGBT persons deserve to live unshackled from the shadow of being “unapprehended felons” and declared IPC’s Section 377, which criminalises consensual sexual acts of adults in private, as “violative of Articles 14, 15, 19, and 21 of the Constitution”.

Thus, the exclusion of persons without any examination of the actual risk of HIV amounts to discrimination under Articles 14 and 15 and does not meet the test of intelligible differentia, the plea argues.

What is the government’s argument for the exclusion?

In its affidavit, the government said that the exclusion of transgender and gays from blood donation is premised on scientific evidence, adding, “There is substantial evidence to show that transgender persons, men having sex with men and female sex workers are at risk for HIV, Hepatitis B or C infections.” The affidavit cites research from a slew of local and international “reputed scientific journals” such as the International Journal of Community Medicine and Public Health and the International Journal of STD & AIDS.

The Centre also referred to the Annual Report of the Department of Health and Family Welfare (2020-2021) pointing to a three to six times higher HIV prevalence among adults who are Hijras, Transgenders, MSM (Men who have sex with men), and female sex workers.

The affidavit argues that restrictions for blood donors in respect of population groups with a high prevalence of HIV and other Transfusion Transmitted Infections exist worldwide. For instance, most European countries permanently defer sexually active MSM from donating blood, the Centre said, relying on the European Men-who-have-sex-with-men Internet Survey (EMIS).

In response to the petitioner’s argument that screening for infectious diseases takes place regardless, the affidavit pointed to a “residual window period even with the best of tests, like Nucleic-acid testing (NAT) test.” It indicates the time between exposure to an infectious agent and a test detecting infections, during which the infection may be undetectable owing to limitations in testing technology.

Finally, the Centre contended that such issues fall within the ambit of the executive and need to be seen from a public health perspective as opposed to an individual rights perspective. “The right of the recipient to receive a safe blood transfusion far outweighs the right of an individual to donate blood,” the affidavit said.