The Supreme Court on Friday issued notice in a plea challenging the Union Ministry of Health blood donor guidelines, which prohibit transgender persons and gay men from donating blood (Thangjam Santa Singh v. Union of India).
While issuing notice to the Central government, the Bench of Chief Justice of India SA Bobde and Justices AS Bopanna and V Ramasubramanian said that “it did not understand such medical matters.”
The plea challenges Clauses 12 and 51 of the general criteria under the Guidelines on Blood Donor Selection and Blood Donor Referral, 2017, (Guidelines) which permanently defers or prohibits transgender persons, men having sex with men, and female sex workers from donating blood. The guidelines consider these people to be in the high-risk category for HIV/AIDS infection.
The plea avers that such exclusion on the basis of gender identity and sexual orientation is “completely arbitrary, unreasonable, and discriminatory and also unscientific.”
“In fact all blood units that are collected from donors are tested for infectious diseases including Hepatitis B, Hepatitis C, HIV/AIDS and hence permanently excluding them from donating blood and categorising 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,” reads the plea.
The plea goes on to state that during the COVID-19 pandemic, many members of the transgender community who needed blood were unable to get it from their trans relatives or loved ones, because of the Guidelines.
It is further urged that blood donor guidelines need to be based on actual and not perceived risk and should not be based on identities.
“The present impugned Guidelines are stigmatizing as they are not based on how HIV transmission actually works, nor are they based on the actual risks involved in specific activities but are based only on identities of donors such as, whether they are transgender, gay or bisexual men or female sex workers,” says the plea.
It is also averred that the Guidelines are in violation of the settled position of law that discrimination cannot be made on the basis of gender identity and sexual orientation, as was held by the Supreme Court in the Navtej Johar and NALSA judgments.
On these grounds and others, the Guidelines have been challenged as being violative of Articles 14, 15 and 21 of the Constitution of India.