Supreme Court Seeks Centre's Response On Plea Against Blanket Ban On Blood Donation By Transgenders, Sex Workers

A Bench led by CJI SA Bobde issued notice on the petition after hearing Advocate Jayna Kothari, but refused to grant an interim relief of stay while observing that the court is not an expert in scientific issues.

The public interest litigation filed by a member of the Transgender community, Thangjam Santa Singh, challenges the "Guideline on Blood Donor Selection and Blood Donor Referral, 2017" issued by the National Blood Transfusion Council and the National Aids Control Organization under the aegis of Central Health Ministry in October 2017.

The plea states that Clauses 12 and 51 of the said guidelines arbitrarily consider transgender persons, gay men and female sex workers to be a high-risk HIV/ AIDS category and prohibit them from donating blood.

It is pleaded that exclusion of the above class of persons, solely on the basis of their gender identities/ sexual orientation, is not only unreasonable but also unscientific. The plea states,

"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 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."

It adds,

"The prohibition of transgender persons, men having sex with men and female sex workers is due to assumptions based on negative stereotypes which amounts 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 and healthcare."

Reliance is placed on NALSA v. Union of India, (2014) 5 SCC 438 and Navtej Johar v. Union of India, (2018) 10 SCC 1.

It is averred that across the world, guidelines on blood donation have been updated to not make deferrals based on gender identities and they merely prescribe a 3 month or 45-day deferral from the last high-risk sexual contact.

In this backdrop, the plea states,

"blood donor guidelines need to be based on an individualized system for all donors based on and not perceived risk and not 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 the identities of donors such as, whether they are transgender, gay or bisexual men or female sex workers."

Lastly it is urged that 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 present petition has been filed by Advocate Anindita Pujari, drawn by Advocate Thulasi K Raj on behalf of the petitioner on behalf of the petitioner Thangjam Santa Singh.