Why queer the pitch for healthy and willing blood donors?

Hearing of the public interest litigation questioning the blood donor rules of 2017, which permanently bars LGBTQIA persons (including transgender individuals) and female sex workers from donating blood, has been moved to Friday, 2 August.  

A bench consisting of Chief Justice of India D.Y. Chandrachud and justices Manoj Mishra and JB Pardiwala will take it up. The petition was listed for Tuesday, July 30, but other cases on the list pushed it down and it had to be postponed.  

The petition has been filed by the director of the Rainbow Literature Festival, Sharif D. Rangnekar, through his lawyers Rohin Bhatt and Ibad Mushtaq.  

The petitioner is challenging the constitutional validity of the Guidelines on Blood Donor Selection and Blood Donor Referral, 2017, issued on 11 October 2017 by the National Blood Transfusion Council (NBTC) and National Aids Control Organisation (NACO) — under the ministry of health and family welfare, Government of India. The impugned guidelines permanently debar transgender persons, female sex workers and men having sex with men from donating blood and being blood donors in the manner of a blanket restriction — without any health check-ups or documentation being required.  

The case, according to Rangnekar, is that such a blanket prohibition is a violation of the right to equality, dignity and life protected under Articles 14, 15, 17 and 21 of the Constitution.  

It has been submitted in the petition that the impugned guidelines are based on a highly prejudicial and presumptive view taken of gay men in the 1980s, in the United States of America. Such views and rules have since been revisited by a majority of countries, including the United States of America, the United Kingdom, Israel and Canada, amongst others, where successive governments have come out with revised guidelines for blood donors that do not impose a blanket restriction on gay men or gender-queer persons.  

The petition also states that India’s guideline is violative of Article 15, as interpreted by the Supreme Court in NALSA vs Union of India (2014) and Navtej Singh Johar vs Union of India (2018). The Navtej case creates precedent for any restriction which is squarely based on gender identity and sexual orientation, such as summarily stigmatising a community, amounting to discrimination under Article 15. 

While the traditional interpretation of Article 17 was only based on caste-based untouchability, in Indian Young Lawyers Assn. (Sabarimala Temple) vs State of Kerala (2019), the Supreme Court — speaking through Justice D.Y. Chandrachud — noted, ‘Article 17 occupies a unique position in our constitutional scheme. The Article, which prohibits a social practice, is located in the chapter on fundamental rights. While there has been little discussion about Article 17 in textbooks on constitutional law, it is a provision which has a paramount social significance both in terms of acknowledging the past and in defining the vision of the Constitution for the present and for the future... The Framers of the Constitution left the term “untouchability” undefined. The proceedings of the Constituent Assembly suggest that this was deliberate.’

Based on this, the present petition submits that the blood donation rules amount to a practice of untouchability. The petitioner therefore demands that clauses 12 and 51 of General Criteria under Blood Donor Selection Criteria of the Guidelines for Blood Donor Selection and Blood Donor Referral, 2017, be declared as discriminatory and unconstitutional to the extent that they permanently exclude men having sex with men from donating blood. 

Rangnekar, through his petition, requests that a writ or an order be issued to frame guidelines that allow men having sex with men to donate blood, with reasonable restrictions based on ‘screen and defer’ or ‘assess and test’ policies. He also calls for sensitisation programmes for healthcare personnel dealing with men having sex with men who are keen to donate blood, without subjecting them to invasive questions, and for ensuring the state AIDS control organisations are conversant in the new policies once they are enacted.  

In March 2023, there was another PIL filed by a member of the transgender community, Thangjam Santa Singh, who also requested the Supreme Court to strike down the prohibition against gay and transgender people donating blood. That petition, too, argued that this prohibition was violative of the Constitution of India.

Then, responding to the petition, the union ministry of health and family welfare stated that there was substantial evidence to demonstrate that ‘transgender persons, men having sex with men and female sex workers are at risk for HIV, hepatitis B and hepatitis C’.