Background and Issue

In 2017, the National Blood Transfusion Council (NBTC) and the National Aids Control Organisation (NACO) issued the Guidelines on Blood Donor Selection and Blood Donor Referral. Clause 12 and 51 of the Guidelines permanently ban transgender persons, men having sex with men, and female sex workers from donating blood.

Santa Khurai, a transgender activist from Manipur, filed a petition as a public interest litigation challenging the constitutional validity of the Guidelines. She argued that the permanent exclusion of transgender persons, gay or bisexual men and sex workers amounts to discrimination under Articles 14, 15 and 21 of the Constitution of India, 1950. She further stated that the grounds for the permanent ban were arbitrary, discriminatory and unscientific.

 

What Does the Petitioner Seek?

The Petitioner prayed for the Court to-

  1. Strike down Clause 12 and 51 of the Guidelines as unconstitutional and in violation of Articles 14, 15 and 21.

 

Grounds for the Petition

Ensuring Equality of All Persons

The petitioner stated that the right to equality under Article 14 is violated by the permanent exclusion for blood donation. She referred to NALSA v. Union of India, (2014) where the word ‘person’ in Article 14 was interpreted to not be limited to male and female. Accordingly, all rights that a person was entitled to under the law was applicable to transgender persons. Shanta Khurai noted that this would entail being allowed to donate blood, and not discriminated based on gender identity.

Further, the petitioner noted that if the intention of the Guidelines is establishing a safe and sufficient supply of blood, there is no reasonable connection between this aim and the exclusion of persons based on gender identity. She referred to State of West Bengal v. Anwar Ali Sarkar (1952) where the Supreme Court stated that there must be a nexus between the basis of the classification and the aim of the policy in question.

The petition also stated that the lack of reasonable grounds for this exclusion suggests that it is made based on negative stereotypes. Transgender persons, men who have sex with men and sex workers are assumed to be carriers of HIV/AIDS. The petitioner referred to Indian Young Lawyers Association v. State of Kerala, (2019) which stated that the equality of all persons relies on the freedom from the ill effects of stereotypes, and equal entitlement to the protection of law.  

The petitioner highlighted that internationally no such ban exists, there is no medical evidence, or recommendation to impose such an exclusion in the Indian context.

 

Discrimination on the Grounds of Sex

Clause 12 of the Guidelines categorises transgender persons, men who have sex with men and sex workers as ‘at risk’ for HIV. The Petitioner noted that no actual medical assessment was made to ascertain this. The only ground for the ‘at risk’ categorisation was the persons’ gender identity and sexual orientation. The petitioner highlighted Navtej Johar v. Union of India (2018) where the Supreme Court held that discrimination on the ground of sex under Article 15 included sexual orientation and gender identity.

 

Right to a Dignified Life

The petition also stated that excluding transgender persons, gay and bisexual men, and female sex workers from donating blood restricts them from participating in society. She stated that the implied message is that such persons are not worthy. This violates Article 21 which guarantees right to a life with dignity.

The petition went on to note that transgender persons and persons of different sexual orientations are already marginalised due to the lack of education, poverty, lack of employment and the lack of access to welfare facilities. The Guidelines will further impact them and reinforce their social subordination. She noted that this directly violated Article 21.