Transgenders’ Exclusion As Blood Donors Challenged. What Supreme Court Said

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A recipient must be assured that the blood being transfused is clean, the Supreme Court said on Wednesday while hearing a plea challenging the 2017 guidelines excluding transgenders, men having sex with men, and female sex workers from being blood donors.
A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia, which said it was not issuing notice on the plea, tagged it with another pending petition raising the issue.

The apex court had in March 2021 sought responses from the Centre and others on a separate plea challenging the 2017 guidelines for blood donor selection and blood donor referral excluding the three categories of people from being blood donors.

During the hearing on the plea on Wednesday, the counsel for the Maharashtra-based petitioner told the top court the guidelines excluding certain categories of people from donating blood adversely affected them.

“The blood recipient must be assured that the blood being transfused is clean blood,” the bench observed.

It referred to the “risk behaviour” mentioned in the blood donor selection criteria in the guidelines which says the donor shall not be a person considered “at risk” for HIV, Hepatitis B or C infections.

The petitioner’s counsel said one of the discriminatory parts is that a person has to disclose his sexual identity and orientation for donating blood.

The lawyer argued the guidelines that bar transgenders, men who have sex with men and female sex workers from donating blood were problematic.

“Earlier, there were people in closet. Maybe today also they are. But the very basis for being in a closet is largely opened up,” the bench observed, adding the law has developed with time.

“Let us understand what they are doing. Ultimately, it is to protect the blood which has been obtained for needy people. There cannot be Article 14 (equality before law) issue in this,” the bench said.

When the petitioner’s counsel referred to some data, the top court said they may be deceptive.

The bench asked the counsel whether similar issue has been raised in another petition which is pending before the apex court.

The lawyer responded in the affirmative.

“We are not issuing notice,” the bench said, adding the plea will be tagged with the pending petition.

While hearing the earlier petition in March 2021, the apex court had issued notices to the Centre, the National Blood Transfusion Council (NBTC) and the National AIDS Control Organisation (NACO) seeking their responses on the plea filed by a transgender activist from Manipur.

The petition has sought striking down the clause in the guidelines for blood donor selection and blood donor referral, 2017 to the extent that it permanently bars transgenders, men having sex with men and female sex workers from being donors as they were at risk of contracting HIV.

“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 and also unscientific,” the plea filed in 2021 said.

It alleged that transgender persons, gay and bisexual men, who were requesting for being allowed to donate blood during the Covid-19 pandemic, when their community and family members needed blood for emergency medical treatment, were turned away due to “permanent deferral under the impugned guidelines”.

It claimed these guidelines are “stigmatizing” as they are neither based on how HIV transmissions actually happen nor on the actual risk involved in specific activities but on the sexual identity and orientation of donors.

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