There is a famous saying blood runs thicker than water. In India, gay and transgender individuals face discrimination in many forms. One such discrimination is the ban on them donating blood. A petition was filed before the apex court challenge this ban, the Indian government defended the exclusion by citing scientific evidence that categorized the transgender and gay community in the “at-risk” group for HIV, Hepatitis B, and C infections. A Bench led by Chief Justice of India Sharad A. Bobde issued notice on a petition filed by Thangjam Santa Singh @ Santa Khurai, represented by advocates Jayna Kothari and Thulasi K. Raj, which said the prohibition affected these communities during the pandemic as their members could not donate or receive blood, a healing element, during the public health crisis. the prohibition on gay and transgender people from donating blood under clauses 12 and 51 of the ‘Guidelines for Blood Donor Selection & Blood Donor Referral, 2017’ issued by the National Blood Transfusion Council (NBTC) and the National Aids Control Organisation on 11 October 2017.
HISTORY
The ban on gay and transgender people donating blood was introduced in the 1980s when information on detecting and transmitting HIV/AIDS was less advanced. At that time, people were not fully aware of the modes of transmission of the virus, and there was no reliable test to detect HIV in blood donations. The fear of HIV transmission led to the exclusion of gay and transgender people from donating blood in many countries, including India. The Indian government justifies the ban on scientific grounds, stating that the community is at a higher risk of HIV, Hepatitis B, and C infections. However, activists argue that the ban is discriminatory and violates the fundamental right to equality. They argue that the government’s stand is based on outdated stereotypes and is not in line with the current medical knowledge of HIV transmission and prevention.[1]
In its response to the Supreme Court, the Centre said that “the determination of the population group that is to be precluded from being blood donors is prescribed by the National Blood Transfusion Council (NBTC)” and is based on scientific evidence. In its preliminary affidavit, the Union Ministry of Health and Family Welfare said “transgender persons, men having sex with men and female sex workers are at risk for HIV, Hepatitis B or C infections.”
IN USA
The United States has long prevented gays and transgenders from donating blood but the ban was shortened with a condition that they don’t have sex for at least a year before the donation. In January this year, the Food and Drug Administration (FDA) announced its plans to revise the blood donation policy. According to the guidelines, gay and bisexual men in monogamous relationships are permitted to donate blood. However, those who have engaged in anal sex with new or multiple partners, regardless of their gender or sexual orientation, are required to wait for three months before donating.[2] FDA Commissioner Dr Robert Califf had then said, “Maintaining a safe and adequate supply of blood and blood products in the US is paramount for the FDA, and this proposal for an individual risk assessment, regardless of gender or sexual orientation, will enable us to continue using the best science to do so.”
IN THE UNITED KINGDOM,
The members of the LGBTQ+ community are allowed to donate blood if they have had the same sexual partner for the past three months.[3] The country’s health agency, the National Health Service (NHS) in 2021 announced that healthy people of any gender or sexual orientation who have had the same sexual partner for at least three months are eligible for blood donation. Previously, gay and bisexual men in England, Scotland and Wales were not permitted to donate within three months of having been sexually active, due to fears around the transmission of HIV/AIDS and other infections.
IN CANADA,
It has officially ended the ban on blood donations by gay men[4]. The revised guidelines now allow gay men to donate blood, provided they have abstained from sexual activity for three months. During screening, all donors are asked if they’ve had new and/or multiple sexual partners in the last three months. If they have, they are then asked a follow-up question about whether they’ve had anal sex with any partner in the last three months.
IN ISRAEL,
In 2021, Israel declared the lifting of all restrictions on blood donations from homosexuals. The then health minister, Nitzan Horowitz, said, “The discrimination against gay men donating blood is over. There is no difference between blood and blood. This is a historical step forward for equal rights for the LGBT community in Israel.”[5] Nitzan Horowitz, Israel’s health minister in 2021, who himself is openly gay, had written in a Facebook post that the health ministry had “removed the denigrating and irrelevant questions” in questionnaires for blood donors, and that everyone would be treated equally regardless of sexual orientation.
“There’s no difference between one blood and the other,” he said. “Discrimination against gays in donating blood is over.”
IN GERMANY,
The European giant earlier this year announced that it would be changing its blood donation policy. Official guidelines will be adapted so that potential donors are no longer assessed differently based on their sexual orientation, Karl Lauterbach told the RND broadcaster in January.“Whether someone can become a blood donor is a question of behavioural risk, not sexual orientation,” Lauterbach was quoted as saying. “There must also be no hidden discrimination on this issue,” he had added.[6]
IN GREECE,
In January 2022, Greece also lifted its decades-long ban on gay and bisexual men donating blood. According to the new rules, the form to be filled by potential donors removed homosexual sex acts from the list of things prohibiting people from giving blood.The move brought to an end a ban on gay and bisexual men donating blood which was in place since 1977. The previous form for prospective donors stated that any man who has sex with other men is not allowed to give blood.[7]
IN FRANCE,
France in 2022 ended its ban on gay men giving blood and stated that gay men would be able to donate blood under the same conditions as heterosexuals, without any reference to sexual orientation or period of sexual abstinence.The ruling has been a long time in the making. Homosexual men were banned from giving blood in France in 1983 due to the AIDS epidemic. This ban was lifted in 2016, but on the condition that they had not had sex in the past 12 months. In 2019, this was shortened to four months.[8]
Medical officers ensure that the blood donors should be free from all the diseases like HIV AIDS, Hepatitis etc. India fell 9% short of its blood requirement in 2015-16 , IndiaSpend reported on 3 September, 2016, with prosperity dictating availability; Bihar, for instance, was 84% short of its blood requirements and Chhattisgarh 66% short, while Chandigarh was oversupplied nine times and Delhi three times. Up to 95% of India’s HIV transmissions are caused by unprotected sex, according to this December 2015 answer to the Lok Sabha. Blood transfusions account for 0.1% of HIV infections, according to data released in the Lok Sabha reply, but based on NACO figures, it would account for 1.7%. Either way, the number of HIV infections through blood transfusions should be zero: the US reported its last such case in 2008, the UK 2005 and Canada 1985. It is mandatory for hospitals to screen donors and donated blood for what are called transfusion-transmitted infections, such as HIV, hepatitis B and C and malaria. That isn’t always done, and when it is, the chances of ruling out HIV-positive blood are not 100%.[9]
IN INDIA,
The medical officers screen potential donors for their medical history, sexual behavior, and other risk factors before accepting them as donors. However, they exclude gay and transgender people from donating blood, regardless of their individual risk factors. This is also violating Article 14 of the Indian Constitution where all persons should be treated equal before law and Gay or Transgenders are no lesser human beings. India is a progressive country and it should formulate laws keeping this in mind. Some states in India are also facing scarcity in blood donations and regulating this bill and allowing Gay and transgenders to donate blood can solve this problem to a great extent. Activists have been challenging this ban for years, arguing that it is discriminatory and based on outdated notions of HIV transmission. In 2018, the Indian government told the Delhi High Court that it was considering lifting the ban, but no concrete action has been taken since then. In 2020, the National Blood Transfusion Council (NBTC) set up a committee to review the policy on blood donation by transgender individuals. However, the committee’s report is still awaited.[10]
While many countries still have restrictions on blood donation by gay and transgender individuals, some have proposed guidelines for easing these restrictions. For instance, the United States lifted its lifetime ban on blood donation by gay and bisexual men in 2015 and replaced it with a one-year deferral period for men who have had sex with other men. Similarly, the United Kingdom has a three-month deferral period for gay and bisexual men.
However, these guidelines have been criticized by activists for being discriminatory and based on stereotypes. They argue that the deferral periods are not based on individual risk factors but on sexual orientation, which is not a reliable indicator of HIV transmission.
PETITIONER’S ARGUMENTS
The petition pleaded that exclusion of the above class of persons, solely on the basis of their gender identities/ sexual orientation, is not only unr easonable but also unscientific. The plea stated, “All blood units that are collected from donors are tested for infectious diseases including Hepati 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 g ender identity and sexual orientation is violative of their right to be treated equally as other blood donors. 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.”
CONCLUSION
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. Therefore, lifting this irrational blanket ban should be lifted as technology and medical facilities have advanced so much preventing spread of diseases through blood transfusion to a great extent.
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[1] GKToday, https://www.gktoday.in/topic/qa-indias-ban-on-blood-donations-by-gay-and-transgender-people/ , (last visited 23 rd March 26, 2023).
[2] Livemint, https://www.livemint.com/news/india-cites-science-to-ban-transgenders-gays-from-donating-blood-11679072862504.html , (last visited 23 rd March 26, 2023).
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Firstpost, https://www.firstpost.com/explainers/indias-gay-transgender-people-blood-donation-rules-world-12294772.html , (last visited 23 rd March 26, 2023).
[7] Ibid
[8] Ibid
[9] IndiaSpend, https://www.indiaspend.com/2234-get-hiv-via-blood-transfusion-we-didnt-know-govt-to-lok-sabha-56875/#:~:text=Blood%20transfusions%20account%20for%200.1,UK%202005%20and%20Canada%201985. , (last visited 23 rd March 26, 2023).
[10] GKToday, https://www.gktoday.in/topic/qa-indias-ban-on-blood-donations-by-gay-and-transgender-people/ , (last visited 23 rd March 26, 2023).
