The Supreme Court questioned if the 2017 blood donation guidelines label all transgender persons as high-risk. It urged the Centre to consult experts to avoid discrimination while ensuring public health safety.
The Supreme Court of India, on Wednesday, asked the Central Government to talk to medical experts about revising the 2017 blood donation guidelines that ban transgender people and sex workers from donating blood.
The Court was hearing the case, These 2017 guidelines currently label transgender persons, gay men, and female sex workers as “high-risk” for HIV (Human Immunodeficiency Virus) and AIDS (Acquired Immunodeficiency Syndrome), and therefore, do not allow them to donate blood.
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A Bench of Justices Surya Kant and NK Singh made it clear that such a ban might lead to the whole transgender community being seen as dangerous or infected, which could increase stigma and discrimination against them.
The Court stressed that a balanced approach is needed – one that protects public health while also ensuring that no community feels unfairly treated.
Justice Surya Kant asked during the hearing,
“What is worrying me is are we going to brand all transgender persons as risk, thus, indirectly stigmatising the transgender community…this is something only experts can advise. You please and go to talk to them that what can be way out that as a community they are not stigmatised, and at the same time safety measures remain in force.”
While hearing the petitions that challenge clauses 12 and 51 of the 2017 Guidelines on Blood Donor Selection and Blood Donor Referral,
the Court initially observed,
“Obviously the chances of infection are much (in case of donation by transgender), but…”
This remark was followed by a larger concern about whether such rules may wrongly classify all transgender persons as a health risk, without looking at individuals’ actual medical history or test results.
During the hearing, the Additional Solicitor General (ASG) Aishwarya Bhati, representing the Union of India, defended the guidelines by saying they were made with the aim of protecting public health based on the medical situation across the country.
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She explained that blood donation policies should not be looked at in isolation but should take into account the testing systems available in the country.
She said,
“We have to look at Indian reality. What are the mechanisms of testing available across the length and breadth of country. It is only the guideline that we have issued…it is really not to violate any individual rights.”
She further stated that these 2017 guidelines were prepared with “scientific temper” and based on “the best available medical evidence”.
The real goal, she said, was to protect the public and not to harm or insult any specific community.
she added,
“It is really not to violate any individual rights,”
Justice Surya Kant responded to her arguments by saying that the Court was being careful not to express any personal or legal opinions in this matter as it involves scientific and medical knowledge.
He made it clear that the judges understand the limits of their role and respect expert advice.
He said,
“That is why we aren’t not expressing our opinions. We don’t want to superimpose ourselves as experts.”
Justice NK Singh also mentioned the deep-rooted biases and problems transgender people already face in society.
He asked,
“Are we creating a kind of segregated group?…transgenders already suffer biases and prejudices.”
The judges showed concern that this rule may increase the problems faced by the transgender community if not carefully revised.
The Court finally asked the Additional Solicitor General to go back and speak to medical and public health experts.
The Bench said that only medical professionals can provide correct and scientific suggestions about such sensitive issues, especially those related to both health safety and human dignity.
In the words of the Court,
“You please and go to talk to them that what can be way out that as a community they are not stigmatised, and at the same time safety measures remain in force.”
The case is still under consideration, but the Supreme Court’s direction highlights the importance of including expert opinions while making policies that impact vulnerable communities.
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The Court’s observations show a desire to balance public health safety with the constitutional rights and dignity of transgender persons and other marginalised groups.
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