Top Court Seeks Centre's Response Over Blood Donation Ban By Transgenders

The Supreme Court Friday sought responses from the centre and others on a plea challenging the 2017 guidelines excluding transgenders, men having sex with men and female sex workers from being blood donors.

A bench headed by Chief Justice SA Bobde agreed to hear the plea and issued notices to the Centre, the National Blood Transfusion Council (NBTC) and the National AIDS Control Organisation (NACO) seeking their responses on the plea filed by a transgender activist from Manipur.

"Issue notice," said the bench, also comprising Justices AS Bopanna and V Ramasubramanian.

The plea has also sought striking down of the clause of general criteria under blood donor selection criteria of the guidelines for blood donor selection and blood donor referral, 2017 to the extent it permanently defers transgenders, men having sex with men and female sex workers from being blood donors on account of being at risk of HIV infection.

"The exclusion of transgender persons, men having sex with men and female sex workers from being blood donors and permanently prohibiting them from donating blood solely on the basis of their gender identity and sexual orientation is completely arbitrary, unreasonable and discriminatory and also unscientific," said the plea, filed through advocate Anindita Pujari.

It said that all blood units collected from donors are tested for infectious diseases including Hepatitis B, Hepatitis C and HIV/AIDS and hence, permanently "excluding them from donating blood and categorizing them as high-risk only on the basis of their gender identity and sexual orientation is violative of their right to be treated equally as other blood donors."

The plea claimed that the prohibition is due to assumptions based on "negative stereotypes" which amounts to discrimination and these persons are denied equal dignity under Article 14 of the Constitution as they are deemed "less worthy and subordinate" in social participation and healthcare.

It said there is more need for blood and plasma donations as blood supplies have come under pressure due to the coronavirus pandemic.

"Given the COVID-19 crisis, where blood transfusions are needed more than ever for emergency and elective surgeries and treatments, it is more critical than ever for members of the transgender community to rely on the generosity of their family and community members to meet the demands for getting life-saving blood to those affected by the pandemic," the plea said.

It alleged that transgender persons, gay and bisexual men who have been requesting to donate blood during the pandemic when their community and family members needed blood for emergency medical treatment were refused due to the "permanent deferral under the impugned guidelines."

It claimed these guidelines are "stigmatizing" as they are neither based on how HIV transmissions actually works nor are they based on actual risk involved in specific activities but are based only on the identities of donors.

It said during 1980s when the HIV/AIDS outbreak occurred, in many countries such similar lifetime ban on blood donations on transgenders persons and men who had sex with men was implemented.

However, it was due to an outdated policy based on stigma and stereotype associated with transgender persons, men having sex with men and sex workers, the plea said.

"Now such complete bans have been removed in many countries and now guidelines internationally on blood donation do not have such permanent bans based on identity," it said.

"Many countries have revised their policies to not make deferrals identity based, but based on either a three-month or 45-day deferral from the last high-risk sexual contact," the plea said.