New Delhi: The Supreme Court on Friday (March 5) sought the Centre’s response on a plea challenging the constitutional validity of the guidelines in the Blood Donor Selection and Blood Donor Referral, 2017, which prohibit transgender persons, gay men and female sex workers from donating blood, as they are considered a high-risk category as being HIV/AIDS infected.
A bench headed by Chief Justice S.A. Bobde and comprising Justices A.S. Bopanna and V. Ramasubramanian said "it does not understand such medical matters".
The plea was filed by Thangjam Santa Singh, a resident of Manipur, through advocate Anindita Pujari.
The petitioner, who claimed to be a writer and gender rights activist, said in the plea, "In fact, all blood units that are collected from the donors are tested for infectious diseases, including Hepatitis B, Hepatitis C and HIV/AIDS, and hence permanently excluding them from donating blood and categorising them as high risk only on the basis of their gender identity and sexual orientation is violative of their right to be treated equally as other blood donors."
After hearing senior advocate Jayna Kothari, appearing for the petitioner, the bench said, "We will see the replies by the government."
The top court also declined to stay the guidelines of the Blood Donor Selection and Blood Donor Referral, 2017.
The petitioner contended that these guidelines were violative of the fundamental rights under Articles 14, 15 and 21 of the Constitution.
The plea argued that such exclusion on the basis of gender identity and sexual orientation is "completely arbitrary, unreasonable, discriminatory and also unscientific."
The plea submitted that these guidelines became a barrier amid the COVID-19 pandemic, as many members of the transgender community who needed blood were unable to get it from their trans relatives or loved ones.
The petitioner argued that these guidelines are stigmatising as they are not based on how HIV transmission actually works, nor are they based on the actual risks involved in specific activities, but are based only on the identities of the donors.