The Union Ministry of Health and Family has filed its preliminary affidavit in a writ petition challenging the blanket ban on transgender persons, gay men and female sex workers from donating blood, Live Law reported.
The Government of India’s (GoI) affidavit stated that the National Blood Transfusion Council (NBTC), a body comprising medical and scientific experts, prescribes the population group to be precluded from being blood donors. The GoI’s affidavit argues that the issues raised in the writ petition fall within the executive’s ambit and needs to be considered from a public health perspective rather than an individual’s rights perspective.
A member of the transgender community, Thangjam Santa Singh, through Advocate Anindita Pujari, filed the writ petition challenging the “Guideline on Blood Donor Selection and Blood Donor Referral, 2017”, which was issued by NBTC and the National Aids Control Organisation (NACO) under the aegis of GoI.
The writ petition concerned clauses 12 and 51 of the said guidelines, which prescribed transgender persons, gay men and female sex workers under the high-risk HIV/AIDS category prohibiting them from donating blood. Reportedly, the petitioners have challenged the inclusion of transgender persons, gay men and female sex workers in the ‘at-risk’ category and not challenged the exclusion of individuals falling in the class of persons at risk for HIV, Hepatitis B or C infections.
However, the GoI’s affidavit 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,’ Live Law reported. The GoI’s affidavit cited the following peer-reviewed studies to substantiate their claim:
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)
The GoI’s affidavit also cited the Annual Report of the Department of Health and Family Welfare, Government of India (2020-2021). The GoI’s affidavit stated 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.’ The GoI’s affidavit also claimed that similar restrictions are prevalent around the world, stating that “…in most European countries, sexually active MSM are permanently deferred from donating blood.”
The GoI’s affidavit argued that the integrity of India’s Blood Transfusion System is imperative to instil faith in people who depend on it. Furthermore, the GoI’s affidavit claimed that sourcing blood from high-risk groups is in the teeth of the National Blood Policy, which emphasises a safe donor pool.
Earlier, the Petitioner submitted that excluding transgender persons, gay men and female sex workers was based on their gender identities and sexual orientations, which is unreasonable and unscientific. Additionally, the Petitioner claimed that the exclusion based on gender identities and sexual orientations is based on negative stereotypes and is violative to their right to be treated equally.
The petition 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,” Live Law reported.
The petition 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,” Live Law reported.
The petition claimed, “…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 stigmatising 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,” Live Law reported.
The GoI countered the Petitioner’s submissions stating that the blood collected from donors is tested for infectious diseases, noting the limitations of testing technologies. Additionally, the GoI’s affidavit argued that there is a residential infection window period during which the infection is not detectable even if the donor is infected.
The GoI’s affidavit said, “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,” Live Law reported. The GoI’s affidavit added, “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 monkeypox.”