Diluting Ban on Transgenders, Gays For Blood Donation Will Be Injurious To Recipients: Centre Informs Supreme Court

Centre today informed the Supreme Court that it has decided not to interfere with the ban on blood donations by transgender persons, gay men, female sex workers.

Additional Solicitor General Aishwarya Bhati told the CJI Surya Kant led bench the ban is essential with regard to larger public interests. "The experts have reconsidered, and there is a reconsidered opinion that, if this ban is diluted, it will be injurious to the recipients," she said.

The court today heard a 2021 PIL filed by Thangjam Santa Singh challenging constitutional validity of Guidelines on Blood Donor Selection and Blood Donor Referral, 2017 passed by National Blood Transfusion Council and the National Aids Control Organization.

Senior Advocate Jayna Kothari told the bench that the government has put a blanket ban on basis of gender and sexuality. "Once blood is donated, HIV testing is done on the blood..If a heterosexual person donates blood they are not asked when was your last sexual act..", Kothari further told the bench.

"Poor people depend on free medical facilities.. if there is even one percent chance of infection, why should they suffer..", the CJI questioned Kothari.

Eventually CJI Kant granted leave and agreed to hear the petition.

A challenge has been made against clauses 12 and 51 of the general criteria under blood donor selection of the impugned guidelines, to the extent that it permanently defers transgender persons, men having sex with men and female sex workers, from donating blood and further considering them at high-risk category of being HIV/AIDS infected.

The petitioner contends that the exclusion of transgender persons, men having sex with men and female sex workers from being blood donors and also permanently prohibiting them from donating blood solely on the basis of their gender identity/sexual orientation is completely arbitrary, unreasonable, discriminatory and unscientific.

“In fact all blood units that are collected from donors are tested for infectious diseases including Hepatitis B, Hepatitis C, 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 plea states. Petitioners further contend that the guidelines solely rests on “negative stereotypes” amounting to discrimination under Article 14 and 15 of the Constitution.

Highlighting difficulty faced by the discriminated community even more, during the time of COVID-19 pandemic, the plea mentions, “…many members of the community who needed blood were unable to get it from their Trans relatives and loved ones due to the Guidelines. Transgender persons and gay and bisexual men who have been requesting to donate blood during the pandemic when their community and family members needed blood for emergency medical treatment were refused due to the permanent deferral under the Impugned Guidelines. Persons who are barred are not even able to donate plasma for research for COVID, due to this prohibition.”

The grounds taken by the petitioner are: 

1. Impugned guidelines are stigmatizing as they are not based on how HIV transmission actually works, nor are they based on the actual risks involved in specific activities but are based only on the identities of donors, such as, whether they are transgender, gay or bisexual men or female sex workers.
2. The said restrictions are arbitrary, illegal and violative of Articles 14 and 15. Reliance is placed on NALSA v. Union of India, (2014) 5 SCC 438 and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
3. Right to Access Medical Facility as a facet to Article 21 is further violated by the impugned regulation.
4. No scientific reason has been taken into account for formulating the said guideline.

Case Title: Thangjam Santa Singh vs. Union of India

Bench: CJI Kant, Justice Bagchi and Justice Pancholi

Hearing Date: March 12, 2026