While hearing a plea challenging the 2017 guidelines excluding transgenders and gays from being blood donors, the divsion bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia of the Supreme Court said that the recipient must be assured that the blood being transfused is clean.

Back in March 2021, the Supreme Court sought responses from the Centre on plea challenging the 2017 guidelines for blood donor selection and blood donor referral excluding the three categories of people from being blood donors.

Yesterday, during the hearing, the counsel for the Maharashtra-based petitioner told the Supreme Court the guidelines excluding certain categories of people from donating blood adversely affected them.

"The blood recipient must be assured that the blood being transfused is clean blood," the bench observed.

The Court  referred to the "risk behaviour" mentioned in the blood donor selection criteria in the guidelines which says the donor shall not be a person considered "at risk" for HIV, Hepatitis B or C infections.

On the Contrary, the Consel for the Petitioner submitted that one of the discriminatory parts is that a person has to disclose his sexual identity and orientation for donating blood.

"Earlier, there were people in closet. Maybe today also they are. But the very basis for being in a closet is largely opened up," the bench observed, adding the law has developed with time.

"Let us understand what they are doing. Ultimately, it is to protect the blood which has been obtained for needy people. There cannot be Article 14 (equality before law) issue in this," the bench said.

"We are not issuing notice," the bench said, adding the plea will be tagged with the pending petition.

While hearing the earlier petition in March 2021, the Supreme Court issued notices to the Centre, the National Blood Transfusion Council (NBTC) and the National AIDS Control Organisation (NACO) seeking their responses on the plea filed by a transgender activist from Manipur.

"The exclusion of transgender persons, men having sex with men 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 and also unscientific," the plea filed in 2021 said.

It alleged that transgender persons, gay and bisexual men, who were requesting for being allowed to donate blood during the Covid-19 pandemic, when their community and family members needed blood for emergency medical treatment, were turned away due to "permanent deferral under the impugned guidelines".

It claimed these guidelines are "stigmatizing" as they are neither based on how HIV transmissions actually happen nor on the actual risk involved in specific activities but on the sexual identity and orientation of donor.