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

The Union Ministry of Health And Family Welfare has filed its preliminary affidavit in a petition challenging the blood donor guidelines in so far as they impose a blanket ban on Transgender persons, gay men, female sex workers, etc. from donating blood. It has stated 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, a body comprising medical and scientific experts) and is based on scientific evidence. At the threshold, the affidavit argues that the issues raised in the petition falls within the ambit of the executive and is required to be considered from a public health perspective rather than an individual rights perspective.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 -Prevalence of sexually transmitted infections among men having sex with men of urban Vadodara, International Journal of Community Medicine and Public Health (2019)Prevalence of HIV and sexually transmitted infections among clients of female sex workers in Karnataka, India: a cross-sectional study, BMC Public Health (2011)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)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)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)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) Worldwide burden of HIV in transgender women: a systematic review and meta-analysis, Lancet Infectious Diseases (2012) and 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...

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

Sohini Chowdhury

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