Can’t brand all transgenders ‘risky’: SC tells Centre on blood transfusion norms
The Supreme Court gave Centre time to address the transgender community’s concerns of discrimination without compromising on medical precautions
The Supreme Court on Wednesday questioned the exclusion of transgender persons as blood donors, finding no rationale behind branding an entire community as “risky” and gave Centre time to address their concerns of discrimination without compromising on medical precautions.
The court was hearing a bunch of petitions challenging guidelines issued by the National Blood Transfusion Council (NBTC), which prevented transgender persons, men having sex with men (MSM) and female sex workers from donating blood for being at “high risk” for HIV, Hepatitis B or C infections.
A bench of justices Surya Kant and N Kotiswar Singh said, “Are we going to brand all transgenders as risky and stigmatise them. You cannot say that all transgenders are indulging in sexual activity.”
The Centre represented by additional solicitor general (ASG) Aishwarya Bhati said that the guidelines are not intended to stigmatise anyone but have been prepared by NBTC, which comprises doctors and experts, with “scientific temper” and keeping public health and welfare in mind.
The court said, “What worries us is the element of discrimination. They have been isolated and excluded. Just think of something that such feeling does not come, and health standards are not compromised.”
The court pointed out that with changing times, new technologies have emerged and there could be a way out to ensure any possibility of infections is checked and contained. “The question we need to ask is, are we creating a segregated group. Already transgenders suffer from severe biases and prejudices. Does this (guidelines) not further it,” the court observed.
ASG Bhati said that considering the court’s suggestion, she will go back to the experts. However, she said that once blood is donated it goes directly to blood banks and there are vulnerable persons, such as thalassemic patients, who entirely depend on blood banks.
“As a group, transgenders are considered a ‘high-risk’ group the world over, with certain exceptions. There is a period within which infection has to be identified, and the risk window has to be carefully considered. Nobody can claim to have a fundamental right to donate blood. These guidelines must be seen from the perspective of public health as the idea is not to stigmatise anyone,” Bhati said.
The court said, “We do not want to express our opinion. But things around the world are changing. Even technology keeps changing. We do not want to superimpose ourselves as experts but there can be a way out. All we want is as a community, they (transgenders) are not stigmatised. At the same time, medical precautions should not be compromised,” the bench said.
The earliest petition challenging the NBTC guidelines was filed by Manipur-based transgender and social activist Thangjam Santa Singh, who termed the guidelines unconstitutional for discriminating persons based on gender identity.
It also challenged clauses 12 and 51 of the Guidelines of Blood Donor Selection and Blood Donor Referral 2017 which permanently defers or prohibits transgenders, men having sex with men and female sex workers from donating blood and treats them as high-risk category as being HIV/AIDS infected.
The plea said, “The prohibition of transgender persons, MSM and female sex workers is due to assumptions based on negative stereotypes which amounts to discrimination under Article 14 (right to equality) and Article 15 (right against discrimination) of Constitution as they are deemed less worthy and subordinate in social participation and healthcare.”
In February 2023, the Centre responded to the petitions and said that the blood transfusion system (BTS) in the country relies solely on blood donation and the guidelines have been put in place being mindful of the existing reality as regards the quality of health system that varies throughout the country.
“It is important that every effort be made to strengthen the integrity of India’s BTS so as to instill confidence in people who have little option but to use the BTS in what may perhaps be the most difficult situation in their lives,” the Centre submitted in its affidavit.
In India, as per statistics provided by the Centre, there are 3,866 licensed blood banks in the country (as on December 1, 2022) and only a small fraction of it have deployed NAT technology. Besides, it is very expensive and requires trained manpower and specialised equipment requiring proper handling and regular maintenance, the Centre stated in its response.
It further said, “Ensuring safety and availability of blood is a major public health responsibility,” while pointing out that developed countries have been successful in deploying the nucleic acid testing (NAT) which reduces the window period for transfusion transmitted infections (TTIs).
The affidavit filed by the Union Health Ministry said, “Scientific evidence clearly shows that transgender persons, MSM and female sex workers are globally recognised as a population group with a higher prevalence of HIV and other TTIs.” This has been the basis for subject experts, in the present case the NBTC, to prescribe the exclusions.
