Shabbir Ahmed and Anshika Malik, students at the Jamia Millia Islamia Faculty of Law in New Delhi, explore India's ban on LGBTQ+ blood donations and argue that it is high time for the country to enact a more inclusive policy...
The act of donating blood is often lauded as a benevolent and altruistic act with the potential to save countless lives. However, members of the LGBTQ+ community are routinely excluded from participation in this philanthropic endeavour. Recently, the Indian government, citing scientific data, defended its decision to forbid LGBTQ+ individuals from donating blood. This issue has sparked debate and raised questions about the rules surrounding LGBTQ+ blood donation worldwide. In light of a challenge to the ban’s constitutionality filed by Thangjam Santa Singh, a member of the transgender community, it is vital to examine the issue and its impact.
Blood Donation Guidelines in India
Clause 12 of India’s ‘Guidelines for Blood Donor Selection & Blood Donor Referral, 2017’ states that blood donors should be healthy and not at risk of transmitting diseases through blood transfusion, including HIV, Hepatitis B and Hepatitis C. A medical officer’s assessment is required to determine a potential donor’s eligibility for blood donation. Additionally, Clause 51 permanently disqualifies individuals deemed “at risk for HIV infection,” which includes gay and transgender individuals, from donating blood in India. Activists and healthcare professionals have heavily criticized this policy, saying that it is discriminatory and not based on scientific evidence.
Justification for the Ban on LGBTQ+ Blood Donation
Despite criticism, the Central Government has justified its decision by stating that these groups are at an increased risk of contracting HIV/AIDS. The National Blood Transfusion Council (NBTC) determines which population groups should be excluded from blood donation based on scientific evidence, as per the government’s response to the Supreme Court. Singh contended in court papers that discriminating and excluding people based on their gender identity and sexual orientation is “wholly capricious, irrational, and discriminatory, and lacks scientific merit,” while the government maintained that these matters fall under the jurisdiction of the executive branch and should be approached from the standpoint of public health rather than individual rights.
Violation of Fundamental Rights
The Indian Constitution guarantees several fundamental rights, including the right to equality before the law and equal protection of the law, the right to non-discrimination, and the right to life and personal liberty. Article 14 of the Constitution enshrines the principles of equality before the law and equal protection of the law to all persons. This means that every individual is entitled to the same legal protection, regardless of their gender, sexual orientation, or any other personal characteristic. Article 15 prohibits discrimination on the basis of religion, race, caste, sex, or place of birth. This provision also includes discrimination based on gender identity and sexual orientation. Finally, Article 21 guarantees the right to life and personal liberty to all persons, which includes the right to access healthcare.
The proposed ban on blood donation by members of the LGBTQ+ community violates these fundamental rights by treating LGBTQ+ people differently from other donors based solely on their sexual orientation or gender identity. Discrimination based on sexual orientation or gender identity is not a reasonable classification and is therefore unconstitutional. The exclusion of LGBTQ+ individuals from blood donation is a clear example of such discrimination, which perpetuates harmful stereotypes and biases against LGBTQ+ individuals. Furthermore, the ban infringes upon their right to access healthcare, which is an essential aspect of the right to life and personal liberty. Therefore, the proposed ban is not only unconstitutional but also morally unjustifiable.
Moreover, there are several case laws and court decisions that support the argument that the proposed ban on blood donation by members of the LGBTQ+ community in India violates their fundamental rights. One of the landmark cases in this regard is Navtej Singh Johar v. Union of India (2018), in which the Indian Supreme Court recognized the right to equality and non-discrimination for LGBTQ+ individuals. The court held that discrimination based on sexual orientation is unconstitutional and that LGBTQ+ individuals are entitled to the same rights and protections as other citizens. Another important case is National Legal Services Authority v. Union of India (2014), in which the Indian Supreme Court recognized the rights of transgender individuals to self-identification and equal treatment under the law. The court held that the denial of such rights constitutes a violation of the fundamental rights guaranteed by the Indian Constitution. Thus, the arbitrary ban on LGBTQ+ people from donating blood is discriminatory as it violates their constitutional rights to equality and non-discrimination and reinforces stigma and prejudices against them.
Discrimination against LGBTQ+ Blood Donors
The denial of blood donation opportunities to individuals based on their gender identity or sexual orientation indicates that the blood donation system is not sufficiently robust, which results in discriminatory practices. It is important to note that all donated blood units are tested for infectious diseases such as Hepatitis B, Hepatitis C, and HIV/AIDS. So, disqualifying individuals permanently and categorizing them as high-risk based on their gender identity and sexual orientation violates their right to equal treatment as donors. This discrimination is based on negative biases that perceive these groups as unworthy and socially inferior, resulting in exclusion from healthcare and social participation.
Global Changes in LGBTQ+ Blood Donation Policies
It is worth noting that the discriminatory blood donation policies that once existed for gay and transgender individuals in the United States have undergone changes in recent years. The country’s initial ban on blood donation by gay and bisexual men was put in place during the height of the HIV/AIDS epidemic in the 1980s, but advancements in blood screening technology and increased awareness of HIV transmission led to changes in policy. While the United States lifted the blanket ban on blood donation by gay and bisexual men in 2015, the requirement for a year of sexual abstinence remains controversial among some LGBTQ+ advocates, who argue that it perpetuates harmful stereotypes and stigmatization. Similarly, other countries have revisited their guidelines regarding blood donation by LGBTQ+ individuals in recent years. In the United Kingdom and Canada, for example, the deferral period for gay and bisexual men has been reduced to three months. Israel and France have gone further, abolishing the ban on blood donation by gay and bisexual men altogether.
The ban on LGBTQ+ blood donation in India is discriminatory and violates the fundamental rights of LGBTQ+ individuals. The current policy is not based on scientific evidence and perpetuates negative stereotypes that further marginalize the community. To address this issue, blood donor guidelines must be updated, focusing on individual risk assessment rather than broad-based exclusions. Additionally, improving infectious disease detection systems can help ensure the safety of donated blood without resorting to discrimination. It is crucial that policymakers prioritize equality and inclusivity in blood donation policies to promote a more just and equitable society. We must recognize and address the unique challenges faced by individuals who identify as LGBTQ+ and ensure their inclusion in all aspects of public policy.
It is our opinion that exclusionary policies have far-reaching consequences that extend beyond the immediate impact on the individuals directly affected. The impact is felt by their families, friends, and communities. We ought to recognize the value of inclusivity in public policy and strive to create a society that is equitable and just for all. The exclusion of individuals based on their gender identity or sexual orientation perpetuates harmful stereotypes and prejudices that have no place in modern society. It is time to move beyond these outdated attitudes and embrace a more inclusive and accepting approach to policymaking.
Shabbir Ahmed and Anshika Malik are third-year B.A. LL.B. (Hons.) students at the Jamia Millia Islamia Faculty of Law in New Delhi, India.
Suggested citation: Shabbir Ahmed and Anishka Malik, India Needs to End Discriminatory Ban on LGBTQ+ Blood Donations, JURIST – Student Commentary, April 21, 2023, https://www.jurist.org/commentary/2023/05/blood-donation-discrimination-india.
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