Transgender Persons, Gays & Sex Workers Excluded From Blood Donation Based On Scientific Evidence: Centre Tells Supreme Court

The Public Interest Litigation by a member of the Transgender community, Thangjam Santa Singh, filed through Advocate, Anindita Pujari, assails 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. Clauses 12 and 51 of the said guidelines consider transgender persons, gay men and female sex workers to be a high-risk HIV/AIDS category and prohibit them from donating blood.

The Ministry’s affidavit, now, submits that there is substantial evidence to demonstrate that ‘transgender persons, men having sex with men and female sex workers are at risk for HIV, Hepatitis B or C infections’. It avers that, in essence, the petitioners have not challenged the exclusion of individuals who are at risk for HIV, Hepatitis B or C infections, but the inclusion of transgender persons, gay men and female sex workers in the ‘at risk’ category. To counter the challenge, the affidavit attempted to substantiate its claim that these individuals were in fact ‘at risk’, by referring to the following peer-reviewed studies -

1. Prevalence of sexually transmitted infections among men having sex with men of urban Vadodara, International Journal of Community Medicine and Public Health (2019)
2. Prevalence of HIV and sexually transmitted infections among clients of female sex workers in Karnataka, India: a cross-sectional study, BMC Public Health (2011)
3. Geographic and behavioural differences associated with sexually transmitted infection prevalence among Indian men who have sex with men in Chennai and Mumbai, International Journal of STD and AIDS (2021)
4. Sexually transmitted infections and HIV in self reporting men who have sex with men: A two-year study from India, Journal of Infection and Public Health (2016)
5. Prevalence and Assessment of Clinical Management of Sexually Transmitted Infections among Female Sex Workers in Two Cities of India, Infectious Diseases in Obstetrics and Gynaecology (2011)
6. HIV/AIDS-Related Risk Behaviours, HIV Prevalence, and Determinants for HIV Prevalence among Hijra/ Transgender People in India: Findings from the 2014-2015 Integrated Biological and Behavioural Surveillance, Indian Journal of Public Health (2020)
7. Worldwide burden of HIV in transgender women: a systematic review and meta-analysis, Lancet Infectious Diseases (2012) and
8. Worldwide burden of HIV in transgender individuals: an updated systematic review and meta-analysis, PLOS ONE (2021)

In addition to the above-mentioned articles, the affidavit cites the Annual Report of Department of Health and Family Welfare, Government of India (2020-2021). The affidavit states that as per the report, ‘the HIV prevalence among Hijras/Transgenders (H/TG), men who have sex with men (MSM) and female sex workers (FSW) is 6 to 13 times higher than adult HIV prevalence’. It goes on to add that similar restrictions are prevalent across the globe.

“...in most European countries, sexually active MSM are permanently deferred from donating blood.”

The affidavit argues that the Blood Transfusion System is an important aspect of the healthcare system in India and it is a major public health responsibility to ensure the safety, quality, clinical effectiveness and availability of blood. It notes that integrity of India's Blood Transfusion System is to be strengthened in order to instil faith in people who are completely dependent on it. It further argues that sourcing blood from high risk groups is in the teeth of the National Blood Policy, which emphasises on a safe donor pool.

Petitioner’s Submissions

The petition 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 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 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 added,

"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."

It 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 stated,

"...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 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.

Ministry’s Response

The Ministry counters the petitioner’s submission that, the blood being tested for infectious diseases including Hepatitis B, Hepatitis C, and HIV/AIDS already reduces the risk of Transfusion Transmitted Infections. The affidavit argues that there is a residential infection window period and during this period the infection is not detectable even if the individual from whom blood is drawn is infected by it. It avers that the petitioner’s submission is unsustainable given the limitations of testing technologies. It is pointed out that most of the blood banks in India use non-Nucleic Acid Testing technology and where NAT is available the window period of 10-33 days still exists. In view of the limited technology available in India, the affidavit argues that the submission of the petitioner that, instead of blanket exclusion, a deferral period can be considered for transgender persons, gay men and female sex workers is also unsustainable.

“Due to the above limitations, it is submitted that even the most advanced testing technologies can never be completely full proof and is most critical to limit the pool of blood donors to individuals who present the least risk of Transfusion Transmitted Infections as per available scientific evidence.”

The affidavit indicates that the transgender persons, gay men and female sex workers continue to be marginalised groups and the stigma prevents them from seeking timely treatment. It adds -

“There is also higher risk of transmission of new emerging diseases from these groups as recently seen higher risk among MSM in the case of monkey pox.”

[Case Title: Thangjam Santa Singh @ Santa Khurai v. Union of India And Ors. WP(C) No. 275 of 2021]