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INDIA’S BAN ON BLOOD DONATION BY GAY MEN, TRANSGENDER PERSONS, AND FEMALE SEX WORKERS

INTRODUCTION

On 11 October 2017, the National Aids Control Organization and the National Blood Transfusion Council came out with new recommendations for selecting donors and implementing optimal practices in blood transfusion services, titled “Guidelines for Blood Donor Selection and Blood Donor Referral”. Two clauses of these guidelines, Clause 12(Risk Behaviour) and Clause 51(At risk for HIV Infection), concerning the general criteria for donor selection, completely prohibited people who identify as transgender, men who engage in sex with men, and female individuals involved in sex work from donating blood due to their perceived higher vulnerability to HIV, Hepatitis B, or Hepatitis C infections.

This means that if a person belongs to the LGBTQ+ community, or is a female sex worker, they are legally not allowed to donate blood. The basis of this ban, prima facie, is the gender identity of a person. The Central Government, however, has responded to the PIL with numerous pieces of evidence substantiating the fact that “transgender people, men having sex with men and female sex workers are at risk for HIV, Hepatitis B, and Hepatitis C.

This blog discusses the petition that was filed in the Supreme Court challenging the constitutionality of these clauses, the reasons for such a ban to be brought upon the nation, and the potential solutions to this problem.

THE PETITION IN THE SUPREME COURT

A Public Interest Litigation (PIL) was filed by Santa Khurai, a prominent activist advocating for transgender rights, hailing from Manipur in 2021 in the apex court, contesting the enduring exclusion of transgender individuals, men who have sex with men, and female sex workers from being eligible to donate blood. The case – ‘Thangjam Santa Singh @ Santa Khurai v. Union of India And Ors. WP(C) No. 275 of 2021is still being decided. The case was last heard in March, and the date for the next hearing falls in August.

The two issues that the petition discusses are:

  1. Whether a permanent ban on blood donation by transgender people, men who have sex with men, and female sex workers under Clause 12 of the Guidelines violate Articles 14, 15, and 21 of the Constitution of India, 1950?
  2. Whether a permanent ban on blood donation by transgender persons, men who have sex with men, and female sex workers under Clause 51 of the Guidelines violate Articles 14, 15, and 21 of the Constitution of India, 1950?

The petition was admitted – but the court refused to put an interim stay on the guidelines averring them to be a primarily scientific assessment, which is out of the court’s expertise.

WHAT DOES THE PETITIONER SEEK?

The petition contends that basing an exclusion from blood donation based solely on an individual’s gender identity and sexual orientation is “completely arbitrary, unreasonable, and discriminatory and also unscientific,” stating that the clauses are unconstitutional and in violation of Article 14, Article 15, and 21 of the Indian Constitution. This plea stated, “All blood units that are 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 based on their gender identity and sexual orientation is violative of their right to be treated equally as other blood donors.”

It further stated, “The prohibition of transgender persons, men having sex with men and female sex workers is due to assumptions based on negative stereotypes which amount to discrimination under Articles 14 and 15 of the Constitution and they are denied equal dignity under Article 14 as they are deemed less worthy and subordinate in social participation.” The petition should be based on actual risk and not perceived risk; however, the current guidelines are formulated based on the identification of specific groups that are perceived as potential carriers of the disease, and not on how HIV transmissions occur.

The petition further sheds light on the absence of justifiable reasons for this exclusion, suggesting the foundation of these guidelines to be negative societal stereotypes – society tends to associate men who have sex with men, transgender individuals, and sex workers with a higher likelihood of being carriers of HIV/AIDS. The petition also highlights the absence of such bans internationally, and the lack of medical evidence or recommendation supporting the implementation of such an exclusionary measure among the Indian diaspora.

However, the Centre claims that there exists scientific and statistical data that justifies such a ban – “the determination of the population group that is to be precluded from being blood donors is prescribed by the National Blood Transfusion Council (NBTC)”

IS ONLY INDIA EXECUTING SUCH POLICIES?

India isn’t the only nation that has such bans in practice. Restrictions differ in every country. Some countries don’t even consider periods of restraint or the norms of protected sex; whereas some countries have indefinite deferrals. Temporary bans are termed as ‘deferrals’– there are nations that have a stipulated time period, completing which a person can donate blood. People found ineligible now may be found eligible in the future. But a lot of deferrals are indefinite, making it a de facto ban- no donations are accepted even in the future.

In the United States, the group most impacted by HIV comprises gay, bisexual, and other men who have sex with men (MSM). In 2013, the UK government advisory committee known as SABTO made a statement regarding this matter – “the risk of transfusion of HIV-infected blood would increase if MSM were allowed to donate blood.” However, in July 2017, the government reduced the one-year deferral window to three months, resulting from SABTO’s updated conclusions that the “new testing systems were accurate and the donors were good at complying with the rules.”

But why is a ban or deferral required to be in place? All blood that is donated goes under scrutiny and is checked for the presence of any disease-related virus, so what difference does it make to ban gay men, MSMs, and female sex workers from donating blood?

Advocates of the lifetime restriction defend the ban citing the reasoning that it ensures a person doesn’t unknowingly donate infected blood. This is the main point of contention based on which the NBTC rolled out such guidelines, including the statistical data supporting the claim that the groups banned are indeed at ‘high-risk’, and hence it is fair to not allow them to donate blood.

CONCLUSION

A country like India, which champions gay rights and equality for the LGBTQ+ community will only be moving backwards with such bans and restrictions on the community in place. Blood donation bans on transgender people and MSMs are instances of the part – first world countries like the US and the UK that had such bans in place now gotten. The US averted gays and transgenders from donating blood for long, but the position has now changed – gay and transgender people can donate blood provided that they have not had sex for at least one-year preceding donation. The FDA too, not long ago, announced that their blood donation policy is undergoing revisions. The updated guidelines now allow gay and bisexual men who are in monogamous relationships to donate blood. In the UK, individuals from the LGBTQ+ community are eligible to donate blood if they have maintained the same sexual partner for the preceding three months.

There are also countries like Canada, Israel, and France – who have officially lifted the ban on blood donations by the LGBTQ+ community. Canada revisited its guidelines and gay men are now eligible to donate blood provided they have refrained from engaging in sexual activity for a three-month period before donation. However, if they have had anal intercourse with any partner within the past three months, an additional three-month deferral period is required before they can donate. The emphasis on anal sex stems from its considerably higher risk of HIV transmission.

All these examples are proof enough that there is no need to ban a certain section of the community from donating blood based solely on their sexual identity. The concern of the authorities regarding a higher risk of certain viruses being present may be scientifically backed, but science also has alternative answers to tackle the problem, apart from a blanket ban. NBTC and NACO need to revisit the guidelines and look for alternatives, because in no scenario should a pioneering and developed nation in India be supporting such a ban.

Author(s) Name: Sanskriti Saxena (Dr. BR Ambedkar National Law University, Sonipat)