Santa Khurai, a well-known and prominent transgender rights activist from Manipur filed this Public Interest Litigation in the Supreme Court of India under Article 32 of the Constitution challenging the constitutional validity of Clauses 12 and 51 of the Guidelines on Blood Donor Selection and Blood Donor Referral, 2017 issued by the National Transfusion Council and the National Aids Control Organization under the Ministry of Health and Welfare. In the Guidelines, clause 12 states that the donor shall not be transgender persons, men who have sex with men and female sex workers as they are considered ‘at risk’ for HIV, Hepatitis B or C infections and clause 51 states that transgender persons, men who have sex with men and female sex workers are considered ‘at risk’ and are permanently deferred or prohibited from being eligible as donors for blood or plasma. Hence the impugned Guidelines are challenged on the ground that they violate Articles 14, 15 and 21 of the Constitution of India.
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. In fact, 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 on the basis of their gender identity and sexual orientation is violative of their right to be treated equally as other blood donors. The prohibition of transgender persons, men having sex with men and female sex workers is due to an assumption based on negative stereotypes which amount to discrimination under Article 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 and healthcare.
By excluding transgender persons, men having sex with men and female sex workers from being blood donors, the Guidelines denies them participation in society by being able to donate blood when needed and being considered worthy human beings which deprives them of their right to a life with dignity guaranteed under Article 21 of the Constitution.
The Supreme Court in NALSA v Union of India, (2014) 5 SCC 438 and Navtej Singh Johar v Union of India, (2018) 10 SCC 1 held that discrimination on the ground of sex under Article 15 would include discrimination on the basis of gender identity and sexual orientation. Thus, the exclusion of transgender persons, those engaged in same-sex relationships and female sex workers without any examination of the actual risk of HIV amounts to discrimination.
Blood donor guidelines need to be based on an individualized system for all donors based on actual and not perceived risk and not based on identities. The present impugned Guidelines are stigmatizing as they are not based on the actual risks involved in specific activities but are based only on the identities of donors such as, whether they are transgender, gay or bisexual men or female sex workers.
The Supreme Court has issued notice to the Respondents and the petition is pending.
This post was co-authored by Srishti Sinha, a final year law student from the School of Law, Christ University. She is currently interning with the Centre for Law and Policy Research(CLPR).