Indian Supreme Court orders government to reconsider trans blood donor policy

In May, the Indian Supreme Court directed the central government to engage with experts and address policies categorising trans individuals as “high-risk” blood donors, a designation based on assumptions rather than scientific data.

“Are we going to brand all transgender individuals as risky and stigmatize them?” questioned Justices Surya Kant and Nongmeikapam Kotiswar Singh. “You cannot say that all transgender individuals are indulging in sexual activity.”

These policies originate from guidelines issued by the National Blood Transfusion Services, under India’s Health and Family Welfare Ministry, on October 11, 2017. These regulations classify trans people, men who have sex with men, female sex workers, IV drug users, and individuals with multiple sexual partners as ineligible to donate blood due to assumed risks of HIV, Hepatitis B, or C, and necessitate clearance by a medical officer.

The justices reviewed a petition challenging the constitutional validity of Sections 12 and 51 of these guidelines, according to ‘Washington Blade’.

Solicitor General Aishwarya Bhati, representing the central government, explained that these rules, developed by the National Blood Transfusion Council’s medical experts, focus on safeguarding public health without intending to stigmatise any group. During the hearing, the justices noted that excluding trans people from donating blood reinforces their social alienation, raising concerns about whether this exclusion deepens societal biases.

“Just think of something that such feeling does not come, and health standards are not compromised,” they advised, granting the government time to address these issues while ensuring medical safety.

The justices also noted that with evolving times and advancing medical technologies, there are ways to screen blood for infections without excluding entire groups, which would allow for broader civic participation.

Bhati mentioned she would convey the court’s suggestions to medical experts for evaluation. She highlighted that donated blood directly supports blood banks, which are essential for thalassemia patients and others who rely heavily on these supplies.

“As a group, transgenders are considered a high-risk group the world over, with certain exceptions,” Bhati told the justices. “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 stigmatize anyone.”

On August 2024 it was reported that Delhi-based gay man and Rainbow Literature Festival director, Shariff D. Rangnekar, challenged the constitutionality of India’s blood donor rules, which restrict donations from trans people, MSM, female sex workers, and others due to assumed health risks.

The Supreme Court agreed on July 30, 2024, to hear Rangnekar’s petition, filed by Ibad Mushtaq and authored by lawyer Rohin Bhatt. The petition critiques the policy’s foundation on outdated stereotypes from the 1980s. Rangnekar highlights that countries such as the U.S., the U.K., Canada, and Israel have modernised their blood donation policies and urges India to adopt individual risk assessments.

In South Asia, blood donation policies vary for trans people and gay men, with some countries avoiding blanket bans while others enforce them.

According to Equaldex, Nepal allows MSM to donate blood without specific restrictions based on sexual orientation or gender identity, indicating there are no categorical bans for trans people and gay men. Bangladesh also lacks a specific ban, although its policies remain somewhat unclear due to limited documentation.

Meanwhile, Pakistan, Sri Lanka, and Malaysia prohibit MSM and trans people from donating blood, treating them as high-risk groups for HIV and other infections.

“It is not just LGBTQIA+ people whose blood can test positive for infections, it could be anybody. All blood that is transfused needs to be tested before transfusion,” said Harish Iyer, a well-known LGBTQ activist in India. “If that is not happening, we have much reason to worry. There is no test on fidelity, regardless of the sex, gender, or sexual orientation. There are open marriages and clandestine affairs that happen in every sexuality. The solution is to speak of safe sex practices and not to take anyone’s word and to test every packet of blood before transfusion.”

Iyer told the Blade that stereotyping and excluding minorities is a root cause of hate crimes. He pointed out how MSM and trans individuals have long been viewed merely as carriers of HIV, rather than people leading happy and fulfilling lives, and the blood donor ban further deepens this division and marginalisation.

Iyer advocated for the government to enhance public awareness about safe sexual practices and ensure comprehensive blood testing before transfusion. Ankit Bhupatani, a global DEI leader and LGBTQ activist, stated to the Blade that the justices’ directive is a long-overdue acknowledgment that India’s blood donation guidelines need scientific evaluation rather than reinforcing stigma.

“By asking the government to seek expert opinion, the bench has opened a path toward evidence-based policy reform. The bench’s observation that labelling all transgender persons as ‘risky’ is troubling, shows judicial wisdom in identifying how these guidelines institutionalize prejudice,” said Bhupatani. “This intervention creates an opportunity to align our healthcare policies with constitutional values of equality and dignity while maintaining necessary medical safeguards.”

He criticised the 2017 guidelines as a form of structural discrimination.

“Such policies do not merely restrict access to a civic activity; they codify stigma into our healthcare system and reinforce harmful stereotypes about LGBT individuals,” Bhupatani commented. “The international trend has indeed moved toward individual risk assessment rather than categorical exclusions. India’s policy remains anachronistic in its approach.”

“The government absolutely should implement individualized medical screening based on specific behaviors rather than identity,” he continued. “The current policy creates the paradoxical situation where a heterosexual person engaging in high-risk behaviors faces less scrutiny than a transgender person in a monogamous relationship. The selective application of supposed ‘public health concerns’ reveals that these guidelines are more informed by social prejudice than medical evidence. Rigorous individual screening would better protect our blood supply while eliminating discriminatory practices.”