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India's Supreme Court recently expressed serious concern over existing blood donation regulations banning transgender persons from donating blood. In a Wednesday hearing, the bench questioned whether it was right to label an entire community "dangerous," and summoned the Centre to revisit policies that can perpetuate discrimination.
"You cannot generalise an entire community," said the SC bench.
While hearing a petition challenging the 2017 blood donor regulations, Justices Surya Kant and N. Kotiswar Singh expressed concerns about the discriminatory nature of categorizing all transgender persons as high-risk donors.
"Are we going to brand all transgenders as risky and stigmatise them. You cannot say that all transgenders are indulging in sexual activity," said a bench of Justices Surya Kant and N Kotiswar Singh.
The petition submitted by Manipur-based transgender rights activist Thangjam Santa Singh has criticized the guidelines rejecting individuals on gender identity grounds as being unconstitutional. The petition from Singh also assaults the rules proposed by the National Blood Transfusion Council (NBTC), rejecting the donation of blood by transgender individuals, men having sex with men (MSM), and women sex workers.
Centre Defends Guidelines as Science-Based, Not Stigmatizing
On behalf of the Centre, Additional Solicitor General (ASG) Aishwarya Bhatti explained that guidelines drafted by medical experts based on scientific reasoning are handed over by NBTC. She strongly stressed that the purpose is to protect public health and not to ostracize any specific group.
Bhatti also said that once donated, the blood reaches vulnerable patients like thalassemia patients, whose safety is paramount.
“As a group, transgenders are considered a high-risk group the world over, with certain exceptions. There is a period within which the 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," she said, citing the window period during which infections such as HIV and hepatitis B or C cannot be detected.
Court Urges Inclusive Policy Without Compromising Safety
Even as the court acknowledged the importance of public health, it made it clear that policies that further segregate already marginalized groups should not be created. “Just think of something that such feeling does not come, and health standards are not compromised," the bench directed.
Judges noted that advances in medical technology would allow for better screening tools, and so more stringent donation procedures could be offered without increasing the risk. "With the changing times, new technologies have emerged… There may be a way out of this.", the bench further said.
ASG Bhati assured the court that she would put her concerns before appropriate medical practitioners for reconsideration.
A step towards reconciling equality and public health
The intervention of the Supreme Court has delighted LGBTQ+ activists and human rights organizations. Under its complexity, the case also uncovers the challenge of balancing scientific risk-based assessments and the fundamental human right to equality and non-discrimination.
Discussion is ongoing regarding how India should revise its public health policy to accommodate both scientific and social justice interventions as the government crafts a response.
(Input from various sources)
(Rehash/Muhammad Faisal Arshad/MSM)
