After Thangjam Singh, a member of the transgender community, moved the Supreme Court seeking to strike down the prohibition on gay and transgender people donating blood in the country, the Centre justified their exclusion by asserting that their inclusion in the “at-risk” category for HIV, Hepatitis B, or C infections is premised on scientific evidence.
The ban on blood donations by gay people was introduced in the 1980s — when information available on the detection and transmission of HIV/AIDS was much less than today. The ban applied to all sexually active gay men, as well as sexually active bisexual men and transgender women who had sex with men.
Let’s take a look at the global response to blood donation by gay and transgender people.
What are the guidelines which restrict gay and transgender people from donating blood in India?
In India, clause 12 of the ‘Guidelines for Blood Donor Selection & Blood Donor Referral, 2017’ mandates the donor to be free from diseases that are transmissible by blood transfusion, and not “at risk for HIV, Hepatitis B or C infections,” such as transgender, gay people, and female sex workers among others. The fitness of the individual for blood donation is determined by the medical officer.
Moreover, another clause still permanently defers those “at risk for HIV infection”, including gay and transgender people, from donating blood in the country.
Issued by the National Blood Transfusion Council (NBTC) and the National Aids Control Organisation in October 2017, these guidelines were approved in an attempt to bring in a Blood Transfusion Service which offers a “safe, sufficient and timely supply of blood and blood components to those in need”.
Singh, in his plea, had challenged the constitutional validity of these clauses, stating that they violate “Articles 14, 15 and 21 of the Constitution of India to the extent they exclude transgender persons, men having sex with men and female sex workers from being blood donors”.
What are the international rules that govern blood donation by gay and transgender people?
Originally, gay and transgender men were completely prohibited from donating blood, owing to the AIDS crisis in the United States in the 1970s and the 80s. It was in December 2015 that the Food and Drug Administration (FDA) introduced a deferral period of a year for people belonging to the community. This meant that any man would have been able to donate blood if they have not had sex with another man in the past 12 months.
The FDA is an agency within the US Department of Health and Human Services, which is responsible for protecting public health by “assuring the safety, effectiveness, and security of human and veterinary drugs, vaccines and other biological products for human use, and medical devices”.
In April 2020, the FDA reduced the deferral period from a year to three months, owing to the shortage of blood during the Covid-19 pandemic. And most recently, the federal body proposed guidelines that would ease restrictions on gay and transgender people from donating blood.
Further, on January 27, 2023, the FDA announced that individuals, regardless of their gender or sexual orientation, who recently have had sexual relations with multiple partners, will have to wait for three months before donating blood.
The proposed guidelines would eliminate time-based deferrals for “men who have sex with men (MSM) and women who have sex with MSM,” according to the statement shared by the FDA. Additionally, the FDA stated that the “current donor history questionnaire would be revised to ask all prospective donors about new or multiple sexual partners in the past three months”.
This proposal was drafted based on scientific data and knowledge, according to the FDA. A report in The Guardian mentions a recent review of blood donor referrals which has found that “there was “no meaningful risk” in lifting the ban and instead assessing donors on the basis of their individual sexual activity”.
“Our approach to this work has always been, and will continue to be, based on the best available science and data,” said Peter Marks, the director of FDA’s Center for Biologics Evaluation and Research, in the press release. “We will continue to follow the best available scientific evidence to maintain an adequate supply of blood and minimize the risk of transmitting infectious diseases and are committed to finalizing this draft guidance as quickly as possible,” Marks said.
The proposal marks a remarkable shift from a discriminatory process of screening for HIV-AIDS risk factors and assessing blood donor eligibility to a gender-inclusive approach towards safeguarding blood supply in the US. The proposal, since January this year, has been kept open for public comment for 60 days, following which the body will finalise the guidance and implement the policy.
The United Kingdom has adopted a FAIR (For the Assessment of Individualised Risk) approach towards people from the LGBT+ community who wish to donate blood. The official website of the NHS Blood and Transplant states that it assesses “eligibility to give blood” based solely on one’s “individual experiences”.
Within this approach, “all donors,” regardless of their gender or sexual orientation would be asked “if they have had a new sexual partner, or multiple partners, in the last 3 months,” and “anyone who has had anal sex with a new partner or multiple partners in the last three months will not be able to give blood at that time,” the website states.
Health Canada, the authority which regulates the country’s blood services, bears the sole right to approve the donor selection criteria.
Earlier, in the 1980s, the donor selection criteria excluded MSM. About 30 years later, the Ontario Superior Court affirmed that the exclusion was “not discriminatory,” since it was “based on health and safety considerations”.
In 2011, according to the official website of Canadian Blood Services, the governing body introduced deferrals of “not more than 10 years and not less than five years since last sexual contact”. Further, through the years, the body has reduced deferrals from five years to one (2016), and from a year to three months (2019).
It was in 2021 that Health Canada finally placed their “focus on high-risk sexual behaviour among all donors”. In 2022, further, it approved and implemented the use of “sexual behaviour-based screening criteria for all donors, regardless of gender or sexual orientation”.
Countries such as the Netherlands, Israel, Argentina, France, Greece and Germany have already or are planning to, move away from restricting specific groups from donating blood, according to a report in The Guardian.
In Australia, gay and bisexual men continue to face restrictions while choosing to donate blood, if their sexual abstinence period is less than three months, according to the report.
Other countries such as the Czech Republic and Switzerland continue to impose a deferral period of a year, whereas Denmark, Estonia and Finland have a deferral period of four months for MSM and female sex partners of MSM.
In Belgium, according to a report by the Belga News Agency, MSM will be able to donate blood “after a four-month deferral period instead of the current 12 months,” from July 1 this year.
Back in India, while Singh had moved the court maintaining that exclusion based on one’s gender identity and sexual orientation is “completely arbitrary, unreasonable, and discriminatory and also unscientific,” the Centre contended that these issues fall within the ambit of the executive and are required to be viewed from the perspective of public health, and not from that of individual rights.