Recently, in the matter of Thangjam Santa Singh @ Santa Khurai v. Union of India And Ors. , the Union Minister of Health and Family Welfare filed its preliminary affidavit in a petition challenging the guidelines of the Blood Donors which imposed a ban on Bisexual, transgenders, Gay Men and Sex Workers to donate blood. Thangjam Santa Singh, a member of the Transgender Community filed a Petition through Advocate, Anindita Pujari.

The Petition challenging "Guideline on Blood Donor Selection and Blood Donor Referral, 2017" was issued by the National Blood Transfusion Council and the National Aids Control Organization under the aegis of Central Health Ministry in October 2017. Clauses 12 and 51 of the said 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 plea stated,

"All blood units that are collected from donors are tested for infectious diseases including Hepatitis B, Hepatitis C, and HIV/AIDS and hence permanently excluding them from donating blood and categorising them as high-risk only on the basis of their gender identity and sexual orientation is violative of their right to be treated equally as other blood donors."

''The prohibition of transgender persons, men having sex with men and female sex workers is due to assumptions based on negative stereotypes which amounts to discrimination under Articles 14 and 15 of the Constitution and they are denied equal dignity under Article 14 as they are deemed less worthy and subordinate in social participation and healthcare."

To counter the challenge, the affidavit attempted to substantiate its claim that these individuals were in fact ‘at risk’, by referring to the following peer-reviewed studies 

• • • Prevalence of sexually transmitted infections among men having sex with men of urban Vadodara, International Journal of Community Medicine and Public Health (2019)
    • Prevalence of HIV and sexually transmitted infections among clients of female sex workers in Karnataka, India: a cross-sectional study, BMC Public Health (2011)
    • Geographic and behavioural differences associated with sexually transmitted infection prevalence among Indian men who have sex with men in Chennai and Mumbai, International Journal of STD and AIDS (2021)
    • Sexually transmitted infections and HIV in self-reporting who have sex with men: A two-year study from India, Journal of Infection and Public Health (2016)
    • Prevalence and Assessment of Clinical Management of Sexually Transmitted Infections among Female Sex Workers in Two Cities of India, Infectious Diseases in Obstetrics and Gynaecology (2011)
    • HIV/AIDS-Related Risk Behaviours, HIV Prevalence, and Determinants for HIV Prevalence among Hijra/ Transgender People in India: Findings from the 2014-2015 Integrated Biological and Behavioural Surveillance, Indian Journal of Public Health (2020)
    • Worldwide burden of HIV in transgender women: a systematic review and meta-analysis, Lancet Infectious Diseases (2012) and
    • Worldwide burden of HIV in transgender individuals: an updated systematic review and meta-analysis, PLOS ONE (2021)

Union Minister of Health and Family Welfare. in response, submitted that blood testing is done to check infectious diseases including Hepatitis B, Hepatitis C, and HIV/AIDS already reduces the risk of Transfusion Transmitted Infections. In response, the affidavit argues that there is a residential infection window period and during this period the infection is not detectable even if the individual from whom blood is drawn is infected by it.

It avers that the petitioner’s submission is unsustainable given the limitations of testing technologies. It is pointed out that most of the blood banks in India use non-Nucleic Acid Testing technology. Due to the limited technology in India, the affidavit argues that instead of blanket exclusion, a deferral period can be considered for transgender persons, gay men and female sex workers is also unsustainable.

“Due to the above limitations, it is submitted that even the most advanced testing technologies can never be completely full proof and is most critical to limit the pool of blood donors to individuals who present the least risk of Transfusion Transmitted Infections as per available scientific evidence.”