Image description: People in India march at a gay pride rally with rainbow balloons and flags.
India famously decriminalised homosexuality (s 377 of the Indian Penal Code) in the historic judgement Navtej Singh Johar v Union of India on September 6, 2018. With homosexuality decriminalised and transgender people having been recognised as the third gender in the 2014 decision National Legal Services Authority v Union of India, an optimistic future seemed within reach, elevating the rights of the LGBTQIA+ community to those enjoyed by other Indians. Yet interceding cases have indicated a fluctuating level of support for realising these substantive rights for the queer community in India.
A number of cases remain pending in the Delhi High Court on the issue of same sex marriage. Yet in addition to these are a diverse range of cases before the judiciary for asserting equal rights for LGBTQIA+ individuals. One such litigation concerns regulations for blood donation, the constitutionality of which are being determined by the Supreme Court of India.
India’s Guidelines for Blood Donor Selection and Blood Donor Referral expressly prohibit transgender people and gay men from donating blood, classifying them as persons ‘at risk’ of infections including HIV-AIDS. However, the India HIV Estimates 2020 Technical Brief by NACO shows a declining trend in the HIV prevalence in India, with the total number of people living with HIV estimated at roughly 2 million. These statistics indicate that significant process has been made in India’s response to HIV-AIDS.
As per 2012 data, the government stated that there were 2.5 million gay men in India. However, activist groups argue that this figure is vastly underestimated, with the real population being around 135 million. The discrepancy exists because the government’s data was compiled years before homosexuality was decriminalised. In making a comparison between the LGBTQIA+ statistics and the HIV statistics in India, the likelihood of gay men or transgender people proving a safety risk to blood donation is negligible. Rather, this ban constitutes group discrimination, violating Article 14 of the Constitution which guarantees the right to equality.
With blood donation deficits presenting a grim reality of India and many people continuing to die for lack of blood, guidelines such as these also contravene the spirit of Article 21 of the Constitution, which protects the right to life.
As every unit of donated blood must already be screened for transferable diseases like HIV and Hepatitis, the existing Blood Donation guidelines are simply a systematic means of prejudicing the community against the LGBTQIA+ people, denying them the enjoyment of equal rights as against the rest of the population.
Although LGBTQIA+ equality jurisprudence is gradually emerging in India, the fight for equality continues. Blood Donation guidelines which discriminate on the basis of gender and sexuality reinforce prejudicial attitudes and practices. The Supreme Court’s judgement on this issue is eagerly awaited and it is hoped that it will uphold the LGBTQIA+ community’s constitutional rights to equality and non-discrimination.