The Central government of India has banned transgender, gay men and sex workers from donating blood under guidelines released in 2017. Since transgender, gay men and sex workers are at high risk of contracting HIV/AIDS, it is recommended that they be prohibited from donating blood. They are now at risk of contracting HIV, hepatitis B or C, according to an affidavit filed by the Department of Health with the Supreme Court.
What do the 2017 Guidelines say?
The governing body of the NBTC has approved guidelines for the establishment of blood transfusion services to provide a prompt, adequate and safe supply of blood and blood components to those in need. However, it has been argued that Articles 12 and 51 of the guidelines violate Articles 14, 15 and 21 of the Indian Constitution. According to clause 12, blood donors must be free from identifiable diseases that can be transmitted by blood transfusion and must not be at risk of contracting HIV, hepatitis B or C. Article 15 prohibits people “at risk of HIV infection” to donating blood indefinitely.
What is the present plea about?
In 2021, transgender rights advocates in Manipur filed a PIL challenging the constitutionality of 2017 guidelines prohibiting transgender and gay people from donating blood. Thangam Santa Singh v Union of India is the name of the case. Thangjam claimed the exclusion was arbitrary, unreasonable and discriminatory, and violated their equal rights. Many people who need blood during COVID-19 cannot get it from their transgender relatives or relatives due to guidelines, contradicting Supreme Court rulings in the “Navtej Johar” and “NALSA” cases.
What did the Apex Court say in NALSA & Navtej rulings?
Gender-based discrimination and discrimination based on sexual orientation, according to the Supreme Court, are included in the definition of sex-based discrimination under Article 15. The Supreme Court ruled in “NALSA” that gender identity is an essential component of sex and that no citizen, including those who identify as third gender, can face discrimination based on gender identity. 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 as “violative of Articles 14, 15, 19, and 21 of the Constitution”. According to the complaint, excluding people without taking into account their actual risk of contracting HIV violates Articles 14 and 15 and does not pass muster.
What is the government’s argument for the exclusion?
Scientific research supports the exclusion of transgender and gay people from donating blood, the government says, citing research from regional and international journals and the Department of Health and Family Welfare’s annual report. It also shows that Hijras, transgender people, MSM (men who have sex with men) and female sex workers have HIV infection rates three to six times higher than adults. The centre also believes that screening for infectious diseases will take place regardless of blood donor restrictions in populations with high rates of HIV and other transfusion-transmitted infections. According to the centre, a recipient’s right to receive a safe blood transfusion goes far beyond the rights of an individual.
Why are the rules prohibiting blood donations by the transgender and gay community criticised?
The ban on homosexual and transgender blood donations was introduced in the 1980s when HIV/AIDS testing and transmission were in their infancy. The Indian government’s ban is based on scientific evidence, claiming an increased risk of HIV, Hepatitis B and Hepatitis C in the community. Activists, however, argue that the ban is discriminatory and violates basic equality rights.
What is the current policy in India?
In India, medical personnel determine the eligibility of blood donors by ensuring that they are free of transfusion-transmissible diseases and are not at risk of contracting HIV, hepatitis B or hepatitis C. Before allowing potential donors to become donors, medical staff check their medical history, sexual behaviour and other risk factors. Regardless of their unique risk factors, transgender and gay people are prohibited from donating blood.
Activists have been fighting against this ban for years, claiming it is discriminatory and based on false theories about how HIV spreads. In 2018, the Indian government informed the Delhi High Court that it was considering lifting the ban, but nothing significant has occurred since then. In 2020, the National Blood Transfusion Council (NBTC) formed a committee to examine the guidelines for transgender blood donors. However, the committee’s report is still pending.
From 1861 to 2018: A timeline of Section 377
British India passed Section 377 in 1861, which defined “sodomy” as unnatural sexual behaviour against the will of God and man. Activists have challenged this in various ways amid much controversy. In 2001, the Naz Foundation filed a petition in the Delhi High Court challenging the constitutionality of Section 377. The petition was dismissed by the Delhi High Court in 2003, which ruled that the group had no jurisdiction to pursue the case. The Naz Foundation appealed to the Supreme Court in 2006.
In 2009, the Delhi High Court legalized homosexuality between consenting adults, ruling that it violated Articles 14, 15 and 21 of India’s constitution. The Supreme Court overturned HC’s decision in 2012 after finding it “legally untenable”. The Shashi Tharoor Privacy Act was introduced in 2015 to amend the current law. Narendra Modi’s government had promised not to vote on Article 377 until after the Supreme Court’s decision, but the lower house rejected Private MP Shahi Tharoor’s bill to decriminalize homosexuality. In 2016, five petitions to the Supreme Court claimed that Section 377 violated their sexual rights, sexual autonomy, choice of sexual partners, life, privacy, dignity, and equality. In July, a five-judge constitutional judge began hearing the petition.
Relevance of the present Law
India’s preamble recognizes transgender and queer people as equal citizens, and India’s Supreme Court decision to allow same-sex adult unions is widely seen as a landmark decision. This does not mean that LGBTQIA+ people in India enjoy complete freedom or the same treatment as other Indian citizens.
Although homosexuality is not a mental illness, the Indian LGBT community is the most affected. Resolutions passed by the UN have had a positive impact, but India’s position on LGBT issues at the UN has been disappointing. The Supreme Court’s decision to decriminalize Section 377 is a major victory for the LGBTQ community, but it will also have implications for other laws. To address this issue, family law changes are needed and public awareness of LGBT rights is increased. Every human being is born with certain inalienable rights, one of which is equal rights for LGBTQ people. These rights must be recognized along with all other human rights.
Article 14, 15, 19, 21 and 29 of the Army and Navy Act prohibit same-sex relationships, as well as custody, adoption, surrogacy, in vitro fertilization and security relationships with members of his LGBT+ family. Discrimination based solely on sexual orientation violates Articles 14, 15 and 21, as does the inability to find work. Marriages within the LGBTQ community must be solemnized in accordance with the Special Marriage Act 1954 to avoid conflict and confusion. Although the Supreme Court’s decision favours the LGBTQ community, it may be difficult to deal with the social consequences for members of the community.
Do other countries allow blood donations by gay and transgender people?
While many countries still ban gay and transgender blood donations, some guidelines have proposed relaxing these restrictions. In the United States, for example, a one-year grace period for men who have intercourse with men replaces the lifetime ban on blood donations by gay and bisexual men. In the UK, gay and bisexual men face the same three-month grace period.
Activists, meanwhile, criticize the rules as biased and based on stereotypes. They argue that it is the respite period rather than a specific risk factor that is determined by sexual orientation, which is an unreliable predictor of HIV transmission.
Even when individual rights are balanced, the goal of a safe blood transfusion system (BTS) is to ensure the health and safety of recipients. The integrity of BTS is of paramount importance to public health, and the Constitutional Court must follow the advice of experts in the matter.
- Rights of the LGBT community in India. (n.d.). https://www.legalserviceindia.com/legal/article-9407-rights-of-the-lgbt-community-in-india.html
- D. (2023, March 15). Q+A: India’s Ban on Blood Donations by Gay and Transgender People. GKToday. https://www.gktoday.in/topic/qa-indias-ban-on-blood-donations-by-gay-and-transgender-people/
- Ojha, S. (2023, March 11). Transgender people, gays, sex workers excluded from blood donation based on scientific evidence: Centre to SC. India Today. https://www.indiatoday.in/law/supreme-court/story/transgender-people-gays-sex-workers-excluded-from-blood-donation-based-on-scientific-evidence-centre-to-sc-2345264-2023-03-11