The Supreme Court on Saturday issued notice to Centre on a plea challenging the constitutional validity of the Guidelines on Blood Donor Selection and Blood Donor Referral of 2017 to the extent it forbids gay men from donating blood. The guidelines issued by National Blood Transfusion Council (NBTC) and National Aids Control Organisation (NACO) currently prevent gay men and transgender individuals from donating blood.
According to the petition filed by a gay author Sharif D. Rangnekar, the 2017 guidelines infringe on the fundamental rights to equality, dignity, and life of members of the LGBTQ+ community as well as female sex workers. The bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra agreed to examine the issue.
While issuing notice in the plea, the Court tagged it with a pending matter raising the same question in the case Thangjam Santa Singh @ Santa Khurai v. Union of India. It may be noted that in the said pending case, the Centre on affidavit stated 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 further 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.
Notably, Serial no. 12 of 2017 guidelines dated October 11, 2017, permanently ban transgender people, sex workers, and men who have sex with men from giving blood as they would be at risk for HIV. The plea argued that the arbitrary exclusion of transgender individuals, gay men and female sex workers makes them an affected class.
It also pointed out that many other countries, including the United States, United Kingdom, and Canada, have changed their rules to allow gay men to donate blood. It pointed out that the ban is based on outdated and biased views from the 1980s. It also states that medical technology has greatly improved, especially in blood screening.
Subsequently, the petitioner has sought a declaration from the Supreme Court for holding parts of the 2017 guidelines as unconstitutional. It further requests new guidelines that would allow men who have sex with men to donate blood, with some reasonable restrictions.
Furthermore, the petition calls for awareness programs to educate people about the new policies, and suggests public campaigns to inform society about risky behaviours and the updated guidelines. Additionally, the petitioner wants changes in the syllabus of medical students in order to sensitize that men who have sex with men can donate blood.