The Supreme Court on Friday issued notice to the Centre on a plea challenging the health ministry’s guidelines, which prohibit transgender and gay people, and female sex workers from donating blood, Bar and Bench reported.
A bench of Chief Justice of India SA Bobde and Justices AS Bopanna and V Ramasubramanian issued the notice after observing that the court does “not understand such medical matters”.
The plea challenges Clauses 12 and 51 of the general criteria under the Guidelines on Blood Donor Selection and Blood Donor Referral, 2017, issued by the Ministry of Health and Family Welfare.
Under the current rules, transgender people, men who have sex with other men, and female sex workers are permanently prohibited from donating their blood. The guidelines consider these people to be in the high-risk category for HIV/AIDS infection.
The plea contended that such exclusion, on the basis of gender identity and sexual orientation, was “completely arbitrary, unreasonable, and discriminatory and also unscientific”.
“In fact, all blood units that are collected from donors are tested for infectious diseases including Hepatitis B, Hepatitis C, HIV/AIDS,” it stated. Therefore, permanently excluding certain people 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 said.
The plea added that the Centre should base its guidelines on actual and perceived risk, and not on the basis of one’s identity. It is also averred that the current rules violated the settled position of law that discrimination cannot be made on the basis of gender identity and sexual orientation.
“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 identities of donors such as, whether they are transgender, gay or bisexual men or female sex workers,” the plea stated.
It also pointed out the difficulties faced by the transgender community during the coronavirus pandemic, when many trans people were unable to receive blood from their trans relatives as a result of the guidelines.
On these grounds, the plea argued that the current guidelines violated Articles 14, 15 and 21 of the Constitution of India, which give citizens the right to equality, prohibit discrimination on the grounds of religion, race, caste, sex or place of birth, and one’s right to life and personal liberty.