India’s federal government has opposed blood donations by transgender people, gay men, and women sex workers by claiming “scientific evidence” in a move being seen as exclusionary and discriminatory against the country’s LGBT+ community.
At the centre of the matter are a set of guidelines issued in 2017 by two federal government agencies – the National Blood Transfusion Council and the National Aids Control Organisation – that come under India’s health ministry.
The guidelines consider transgender persons, gay men and female sex workers to be a high-risk HIV/AIDS category and prohibit them from donating blood.
The ministry has now filed an affidavit in the country’s Supreme Court and said there is substantial evidence to demonstrate that “transgender persons, men having sex with men and female sex workers are at risk for HIV, Hepatitis B or C infections”, reported legal news portal LiveLaw.
The government’s 11 March response on the guidelines came on a petition filed by transgender rights activist Santa Khurai, who is based out of the northeastern state of Manipur.
Speaking to The Independent, Ms Khurai says barring the queer community from donating blood is against their rights.
“Blood donation is our right, especially in the transgender and MSM [men having sex with men] community and it is only the community that helps each other,” she says.
“They have barred us from donating blood to our own people which is completely against our rights. This is why I filed a case in the Supreme Court.”
Ms Khurai’s petition has challenged the constitutional validity of Clauses 12 and 51 of the guidelines, officially called “Guideline on Blood Donor Selection and Blood Donor Referral, 2017”.
Ms Khurai’s petition says the “exclusion of transgender persons, MSM and female sex workers from being blood donors and permanently prohibiting them from donating blood solely on the basis of their gender identity and sexual orientation is completely arbitrary, unreasonable and discriminatory”.
The activist says blood donation guidelines cannot be based on one’s sexuality.
“If anyone wants to donate blood, the government should provide facilities and guidelines to screen the blood before taking. They cannot target a group or individual based on our sexuality or occupation or morality,” she says.
The government’s contention is that the guidelines are based on “scientific evidence”.
It has cited eight national and international peer-reviewed studies and an annual report from 2020-21 of the Department of Health and Family Welfare that also comes under the health ministry.
The affidavit stated “the HIV prevalence among Hijras/Transgenders (H/TG), men who have sex with men (MSM) and female sex workers (FSW) is 6 to 13 times higher than adult HIV prevalance”.
“Hijra” is a term frequently used in south Asia to refer to the trans women community and is used in legal parlance as well when referring to the community.
“There is also higher risk of transmission of new emerging diseases from these groups as recently seen higher risk among MSM in the case of monkeypox (sic),” said the affidavit.
The government has also countered the petitioner’s claim that blood being tested for infectious diseases like Hepatitis B, Hepatitis C and HIV/AIDS already reduces the risk of Transfusion Transmitted Infections.
It cited a residual infection window period and said any such infections cannot be detected during this period even if individuals from whom the blood is drawn has contracted them.
It also stated that most blood banks in India use non-Nucleic Acid Testing (NAT) technology and that a window period of 10-33 days still exists where NAT is available.
Citing limitations of testing technologies, the affidavit argued against the petition’s claim that, instead of a blanket exclusion, a deferral period can be considered for transgender persons, gay men and female sex workers.
It said such a consideration was unsustainable.
The affidavit said blood transfusion is a major public health responsibility to ensure the safety, quality, clinical effectiveness and availability of blood.
It claimed that “...in most European countries, sexually active MSM are permanently deferred from donating blood”.
Dr Aqsa Shaikh, associate professor of community medicine at New Delhi’s Hamdard Institute of Medical Science and Research – and a trans woman herself – says while studies have shown that HIV prevalence is higher among transgender persons or MSM groups, to extend this to suggest anyone who is at “high risk” will be barred from donating blood is “neither logical nor ethical”.
“If your gender is different from that assigned at birth you are barred from donating blood. It does not take into account that many trans people may not be doing sex work,” she says.
“Trans people also include trans men who may not be in sex work or those who practice abstinence.”
“It [the guidelines] categorises people based on the gender identity and confuses that with their sexual practices and says that all trans people are at a higher risk of HIV.”
Moreover, the counselling phase before any blood donation in India requires donors to answer questions to identify their behaviour that may affect their ability to donate blood, according to her.
“Someone who may be classified as low risk may also have high risk behaviour in the last few days, while a ‘high risk’ person may not have such behaviour,” she says.
“So to categorise a group that is already stigmatised there is more harm in this than any potential benefit that they can derive.”
“Ultimately it is damaging to the society by stigmatising this group through a false sense of safety that we have ruled out trans persons and MSM.”
Public health experts say that, with the challenge posed to the guidelines in the Supreme Court, the need now is to evolve blood banking guidelines to make them more inclusive.
Senior bioethics researcher Anant Bhan, who earlier served as the president of the International Association of Bioethics, tells The Independent that public health policy needs to be more nuanced.
“There may be cis-heterosexual men who are married but have sex on the side with other men and may not report such behaviour while counselling. So why must anyone who falls under MSM be excluded?” questioned Dr Bhan.
“The more progressive way to look at this is universal risk analysis which recognises that anyone could be at risk,” he says.
“Better mechanisms of screening like in surgery where the assumption is that anyone could have HIV and does not just rely on negative tests.
“So the same approach is needed in public health where we figure out universal screening and better scientific techniques to pick up infections,” he explains.
Dr Shaikh says the current challenge offers an important opportunity to make blood banking guidelines more inclusive.
“There is a need for blood banking guidelines to evolve and change so that they become safer and nondiscriminatory. For instance even people with tattoos or piercings may be rejected by counsellors,” she says.
“This is an important opportunity to revisit our guidelines to make them safer and nondiscriminatory and use available technology.
“Earlier, antigen based tests that can detect HIV in the window period were very expensive, but all blood banks have this technology and it is cheap. We need to make use of this so that everyone receives the safest possible blood.”
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