I am not a Disease Vector: Why Govt’s Stand on Blood Donation is Unscientific, Reeks of Queerphobia

The answer is investing in research on the affected groups, and revising the donor questionnaires in a manner that focuses on individual risks so that all donors are treated equally. It is time that queer people and sex workers are treated as truly equal citizens.

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“Most  importantly, the epidemic was only news when it was not killing homosexuals. In this sense, AIDS remained a fundamentally gay disease, newsworthy only by the virtue of the fact that it sometimes hit people who weren’t gay.”

 ― American journalist and writer Randy Shilts, And the Band Played On: Politics, People, and the AIDS Epidemic (1987)

In the middle of the second COVID-19 wave in 2021, a friend called me up. They asked me if I could donate plasma to help treat their COVID-infected husband. (This was before we knew that plasma therapy for COVID is not efficacious). I had to tell them that I could not donate blood, simply because I am a queer person. I did not have a sexually transmitted infection, and I knew it because I get tested regularly. I also told them that there was a petition filed by Santa Khurai, a Manipuri Nupi Manbi activist, challenging the said guidelines at the Supreme Court as being violative of Articles 14 and 15 of the Constitution.

Government defends guidelines barring transgender persons, gay men and sex workers from donating blood

Last week, the Union Government filed its reply to Khurai’s petition. In its reply, the government argues that, “The entire objective of a safe blood transfusion system (BTS) is to ensure the health and safety of the recipient of the donated blood. Every effort has to be made to ensure that the recipient is shielded from an unfortunate result, especially since the consequences can be irreversible. Thus, even on the balance of the individual rights of the blood donor versus the right of the recipient, the right of the recipient to receive a safe blood transfusion far outweighs the right of an individual to donate blood. The integrity of the BTS is paramount from a public health perspective and constitutional courts should defer to judgment of domain experts”.

If there are systemic failures in testing the donated blood, should queer people be blamed for it? Should queer people be banned from donating blood, when more than a thousand people get infected with HIV due to blood transfusions every year even with the ban in place?

This affidavit, at best, does not understand the actual scientific evidence, nor does it seek to hide what American law professor, scholar and activist Robert M. Cover called “violence of the law” by  excluding  transgender persons, men having sex with men, and female sex workers from donating blood for medical purposes.

The primary reasoning that the government’s affidavit seeks to give is that the three classes of persons which are excluded are susceptible to, and have a higher risk of, sexually transmitted disease.

This is not the first time that such a ban has been imposed by a country. In 2015, the United States Food and Drug Administration (FDA) lifted a similar ban. Canada did the same in April last year. But the ban traces its origins to nearly 30 years ago, when the United States was in the throes of the AIDS (acquired immunodeficiency syndrome) epidemic. Thankfully, those days of “shock and denial” of the AIDS epidemic are behind us. What they leave behind, is a significant improvement in the science of testing donated blood for diseases, and the prejudice that queer persons are subjected to.

Why the policy, and the government’s stand, are unconstitutional and unfair

The Indian policy is not just unconstitutional, but also unfair. Charlene Galarneau, an American bioethicist from whom I have had the opportunity to learn about queerness, bioethics and medicine, wrote nearly 13 years ago in the American Journal of Bioethics that “[d]iscrimination resides not in the risk itself but in the FDA response to the risk”. The same is true for India.

For years, the queer community has been criticising such bans around the world, because they are based not in science but in stereotypes. There can be no denying that the integrity and safety of the blood supply in the country should be preserved. There is reasonable cause for the government to focus on individual risks and carry out appropriate testing so that the people to whom the blood is donated are not infected. But that, in no case, justifies the blanket prohibition on groups. The answer to that is investing in research on the affected groups, and revising the donor questionnaires in a manner that focuses on individual risks so that all donors are treated equally. It is time that queer people and sex workers are treated as truly equal citizens.

The affidavit has a singular undercurrent that queer people in this country, like me, are seen by the government of the day as nothing more than a disease vector. Yes, we form what the Supreme Court called ‘a miniscule minority’, and allowing us to donate blood will not affect the supply massively. A complete ban does not harm the supply, nor will lifting the ban increase the blood supply.

As a queer person, I agree that I am at a greater risk of contracting HIV (human immunodeficiency virus). But all blood is tested for diseases when it is donated. If there are systemic failures in testing the donated blood, should queer people be blamed for it? Should queer people be banned from donating blood, when more than a thousand people get infected with HIV due to blood transfusions every year even with the ban in place?

Rohin Bhatt is a queer lawyer and a queer rights activist from India. He is currently working at the Chambers of Ms. Indira Jaising, Sr. Advocate.