Do Sexual and Gender Minorities Bleed Different? Indian Blood Donation Policy and Equality Code

On October 11, 2017, the Ministry of Health and Family Welfare with NACO & NBTS issued “Guidelines for Blood Donor Selection and Blood Donor Referral” (‘Impugned Guidelines) for selecting blood donors and promoting best practices in Blood Transfusion Services (‘BTS’). However, these Guidelines under Clause 12 & 15 i.e., ‘Risk Behavior’ permanently prohibit transgender individuals, homosexual men, female sex workers, and polyamorous individuals from donating blood, recognizing them as at risk for HIV, Hepatitis B, or C infections. This contribution analyses the constitutionality of the Impugned Guidelines with the substantive conception of equality under the Indian Constitution.

Firstly, it is crucial to note that in 2014 the Supreme Court of India (SCt) in NALSA v UOI (‘NALSA’) recognized non-binary gender identities and upheld the fundamental rights of transgender persons in India. In 2018, the SCt in Navtej Singh Johar v UOI (‘Navtej’) decriminalized same-sex relationships and read down the Colonial Sodomy law. The reasoning behind both these judgments is that discrimination based on sexual orientation or gender identity would include any “discrimination, exclusion, restriction or preference”, which has the consequence of “nullifying or transposing equality by the law or the equal protection of laws’ protected under the Constitution.” (¶ 54, J. Nariman)

Under the veil of its obligation to promote ‘public welfare’, the state formulated the Impugned Guidelines as an instrument to protect from Transmittable Diseases Infections (‘TDI’). However, I contend that the Impugned Guidelines violates the constitutional conception of equality on the reasoning that when all the blood donated by all donors (irrespective of sex/gender) is screened for infections such as HIV, Hepatitis & other TDI, and all the unsuitable units are discarded, then prohibiting queer individuals from donating is patently contrary to the constitutional obligation under the equality code.

In between, formal equality and substantive equality, the Indian Constitution interprets  a substantial concept of equality. For instance, the Supreme Court (‘SCt) in Nitisha and Joseph Shine reaffirmed that the doctrine of substantive equality and anti-stereotyping has been an interpretative transformation of the Indian constitutional jurisprudence on Articles 14 (equality before law) and 15(1) (non-discrimination). The doctrine evolves formally on the ‘disadvantage’ instead of ‘sameness-difference’, for instance locating historical discrimination based on ‘sex’, ‘religion’, and ‘caste’. Subsequently, the doctrine proposed to eliminate historical discrimination by eradicating social discrimination to attain ‘real equality.’ Lastly, it prescribes ‘special provisions’ like prohibition of particular forms of differential treatment to attain ‘real equality’. The SCt in Nitisha rightly observed that to attain “substantive equality prescribed under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited.” (¶ 65, J.Chandrachud)

Prof. Collins and Prof. Khaitan define indirect discrimination using the story of Aesop’s fable of the fox and the stork, as a facially neutral provision that disproportionately affects a particular group without satisfying a means-end justification test. It is structured on the reasoning that discrimination can often be a function, not of conscious composition or malicious objective, but unconscious/implicit prejudices or an incapability to identify how existing structures/institutions, and practices of doing things, have the consequence of freezing an oppressive status quo.

J. Chandrachud in Navtej observed that every discriminatory acts ought to be tested against constitutional values and any discrimination act wouldn’t survive constitutional scrutiny when it is grounded on stereotypes about a class constituted by the grounds prohibited in Article 15(1). (¶ 41) The threshold to determine discrimination has transfored from an intention-centric rule to an effect-centric rule. Thus, to examine whether the Impugned Guidelines constitute discrimination we ought to conduct the ‘indirect discrimination inquiry test’ or ‘Fraser Test’, which asks:

First, whether the (Impugned Guidelines) disproportionately affect a particular group? Secondly, whether the (Impugned Guidelines) have the effect of reinforcing, perpetuating, or exacerbating disadvantage including economic exclusion/disadvantage; social exclusion; psychological harm; or political exclusion and must be viewed in light of any systemic or historical disadvantages faced by the claimant group. (¶ 65, Nitisha)

Prohibiting transgender and homosexual men from donating blood affects them as a group (sex/gender) disproportionately. The Impugned Guidelines prevents them from donating blood whilst allowing binary gender (i.e, man and women) and heterosexuals to donate. The prohibition in the form of social exclusion is structured on the historical disadvantage/stereotype against queer community owing to the HIV/AIDS epidemic in the 1980s. This is based on the pre-conceived notion that these groups are at high risk, as they are promiscuous, engage in unsafe sex, and have multiple partners. The Impugned Guidelines entrench these stereotypes, thus influencing negative social perceptions about queer individuals as a group.

This stigmatization against the queer community in India in health care services was documented during Covid-19 Pandemic. Because of the social stigma and prejudice against the transgender, the community was solely dependent on each other to fulfill the blood demand for those affected by the pandemic. However, due to the Impugned Guidelines, the transgender community couldn’t donate blood to their community members and were not even allowed to donate plasma. Many countries including the UK, the US, Norway, Canada, Germany, France, and South Africa, have no prohibition on Transgender or Homosexual men donating blood or have opted for a deferral period for donations like Australia, Denmark, and New Zealand. However, many countries like India permanently prohibit the queer community from donating blood.

The accumulative consequences of India’s policy on blood donation are, then, to perpetuate or aggravate queer community’s historical disadvantage along the different dimensions. The Impugned Guidelines prevent the queer community from becoming blood donors. The SCt in NALSA and Navtej has repeatedly recognized that Queer communities have faced sordid historical harm and prejudice. J. Malhotra in Navtej observed that “history owes an apology to the members of the (Queer) community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.” (¶ 20) Consequently, the Impugned Guidelines which entrench inequalities experienced by Queer community fall foul of the equality promise under a substantive conception of equality.

Sarthak Gupta is an undergraduate law student at Nirma University, India, and a contributor to the Dhaka Law Review (DHLR).