In The Atlantic, Vann R. Newkirk II reports an incident from 2016 where a gay night club in Florida was attacked. 49 were killed and several persons were wounded. Members of the gay community came forward to help the injured through blood donations, only to find out that they were banned from donating, according to the rules of the United States Food and Drug Administration.
Blood donation rules often place rigid restrictions on who can donate. Often, this exclusion is on the basis of sexual orientation or gender identity. The 2017 guidelines on Blood Donor Selection and Blood Donor Referral (issued by the National Blood Transfusion Council, National Aids Control Organisation under the Ministry of Health and Family Welfare) in India is no exception. Clause 12 of the guidelines list out persons ‘at risk for HIV, Hepatitis B or C infections.’ Transgender persons and men who have sex with men (MSM) are placed in this category and are permanently prohibited from donating blood. In this post, I argue that this lifelong exclusion is unconstitutional and violative of the right to non-discrimination.
The blood ban prohibition is a case of direct discrimination prima facie. The guidelines specifically pick out homosexual men and transgender persons (“sexual minorities”). Discrimination on the basis of sexual orientation was held to be impermissible under Article 15 in Navtej Singh Johar by the Supreme Court. In Navtej, ‘sex’ under Article 15 was held to include sexual orientation and not limited to the biological sex of male and female. Similarly, gender identity-based discrimination is prohibited under Article 15, according to the court when it categorically said in NALSA. “The discrimination on the ground of ―sex under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity.”
What is the purported rationale behind this exclusion? Sexual minorities are at a significant disadvantage in terms of education, employment opportunities and political participation. Worse living conditions and access to healthcare are serious concerns. A high likelihood of sexually transmitted diseases is a consequence of this deprivation and social discrimination. For example, Prevention Gap Report, UNAIDS (2016) says that globally, “transgender people are 49 times more likely to be living with HIV.” Also, “sex workers are 10 times more likely to acquire HIV and gay men and other men who have sex with men are 24 times more likely to acquire HIV.”
The prohibition is also an example of statistical discrimination. This type of discrimination occurs when all individuals from a particular group are assessed based on the overall features or stereotypes about the group. A parallel can be drawn with racial profiling in the United States. Crime rates with a higher proportion from Black people have nexus with unemployment, poverty, low income, family disruptions, and several other factors. When the police deliberately pick out more Black drivers than White in routine checks, it discriminates on the basis of certain data on crimes. While stereotypes could be true or untrue, statistical information about groups need not always be wrong and might be accurate in certain cases. In discrimination cases, what is however difficult to determine is whether information can be used to act in a particular way.
Now, there might be data to suggest that transgender persons are more likely to contain sexually transmitted diseases. However, permanent exclusion from blood donation is unjustified. Firstly, the prohibition is a blanket ban. It does not make a distinction between persons with multiple sexual partners or frequency of sexual intercourse. Members of sexual minority with a single partner are also banned from donating. Instead of individual risk assessment, the prohibition rests completely on the group-based data. Interestingly, Section 2(v) of the HIV-AIDS (Prevention and Control) Act, 2017 defines ‘significant risk’ as the presence of significant-risk body substances, risk-prone circumstance or presence of an infectious source. Here, the definition is one requiring individual case assessment and carefully tailored instead of a group based overall prohibition.
Secondly, to examine the level of risk of infectious diseases, alternative measures exist, instead of a blanket ban against sexual minorities. The state would possibly say that the restriction is justified on account of the high risk of transmission of sexually transmitted diseases among the excluded group. However, this justification seems hardly enough. The proportionality test, summarized as a four-tier test by the Supreme Court in Modern Dental College holds that a right can be restricted if “(i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.” Accurate testing for HIV or other infection is a less intrusive measure. It is argued that technology has advanced to the extent of determining infections reliably, “close to a hundred percent success rate.” Continuing to rely on blanket bans introduced before science was able to develop accurate tests is problematic. Therefore, the state has a very high burden to show that no less intrusive measures could be plausibly imposed. It might be difficult to show that nothing less than a permanent ban suffices.
Thirdly, the prohibition perpetuates stereotypes against the excluded groups. The stereotype assumes that all members of sexual minorities are likely to have multiple sexual partners or otherwise are prone to infections. They are considered subordinate to the heterosexual majority and are considered less worthy and credible concerning blood donations. An analogy could be banning men from going to bars altogether relying on data that shows that male presence is a risk factor for sexual assault on women. Even if the data were accurate, one might be hesitant in introducing this prohibition.
In Anuj Garg, the court considered the nature and effect of stereotypes against women who were not allowed to be employed in Bars. The law was struck down as constituting “invidious discrimination perpetrating sexual differences.” This is a slightly different case because rather than rely on any statistical information, the prohibition was based on paternalistic assumptions about what women should do and how they should behave.
In view of the discriminatory nature of permanent prohibition, several countries have adopted deferral policies for sexual minorities. The revised recommendations of the US Food and Drug Administration have proposed a deferral or wait period of 3 months before they could donate blood. Germany has also recently debated the possibility of relaxing the rules of donation. These steps also indicate that less restrictive measures are widely available and used, instead of a permanent ban, as done in India.
Therefore, the blanket ban on blood donation against sexual minorities fails the constitutional mandate of equality and non-discrimination under Articles 14 and 15. An approach sensitive to individual rights will be legally sound and justified. The current guidelines unilaterally stereotype an entire group as risk bearers. A narrowly tailored restriction can make the regulation constitutionally compatible, without undue emphasis on factors like sexual orientation or gender identity.
This post has been authored by Ms. Thulasi K. Raj, Advocate, Supreme Court and Equality Fellow, Centre for Law and Policy Research. She was assisted by Mr. Shantanu Parmar, a student at RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion on contemporary issues.