November 19, 2023 Bridge Team

It is trite to say that blood is essential to life, and that donating blood saves lives. The World Health Organisation (WHO) states that donating blood is the most precious gift to give another person.  Why then should such a generous gesture be subject to discrimination and stigma?

In Sri Lanka, the current blood donation guidelines published by the National Blood Transfusion Service (NBTS) state that a blood donor should be free of certain ‘risk behaviours’. The guidelines go on to identify the following conduct as “risk behaviours”: (i) having more than one sexual partner, (ii) men having sex with other men (MSMs), (iii) engaging in sex work at least once, (iv) engaging in “risky sexual behaviour” in the past year, and (v) injecting drugs through needles at least once.

Sigmatised

As a result, by characterising them as people prone to “risk behaviours”, these guidelines stigmatise and disproportionately discriminate against gay and bisexual men as well as sex workers. 

While historically, gay men have been branded as carriers of human immunodeficiency virus (HIV), worldwide, scientific developments in recent years have brought about the emergence of new technology and understanding about HIV. Scientific and medical evidence about HIV and modes of transmission, prevention and treatment have made it possible to reform national guidelines on blood donation so that they adhere to international human rights law and standards. Further, national HIV statistics show that out of 363 new cases reported in 2020, though 48% were of MSMs, around 41% were of those in a heterosexual relationship. 

While conduct that the guidelines identify as “risky behaviours” may be engaged in by anybody, regardless of their real or perceived sexual orientation, gender, gender identity or gender expression, they actually single out gay and bisexual men and sex workers explicitly, which results in the perpetuation of discrimination and stigma against them. And the stigma extends, literally, to their blood.

Gay and bisexual men already experience multiple layers of discrimination, stigma and marginalisation, including criminalisation. Sections 365 and 365A of the Penal Code Ordinance, No. 2 of 1883 as amended criminalise “carnal intercourse against the order of nature” and “acts of gross indecency”, respectively. Although the Penal Code does not provide a definition of these terms, both Sections have been used to criminalise consensual same sex sexual relations, and gay and bisexual men. Those convicted of these “crimes” may face up to 10 years’ imprisonment.  

Intl. obligations

Sri Lanka is a party to all core international human rights treaties. Therefore, human rights, such as the right to the freedom from discrimination and to equality before the law and equal protection of the law without discrimination, are enshrined under treaties by which the country is bound. These instruments guarantee the right to equality and non-discrimination to all Sri Lankans, including MSMs, gay and bisexual men and sex workers. In 2017, the Yogyakarta Principles Plus 10 (YP+10) were adopted. In their Additional State Obligations relating to the right to the highest attainable standard of health (Principle 17 of the Yogyakarta Principles), the YP+10 stipulate that States need to “ensure that legal provisions, regulations or any other administrative measures on the donation of blood, gametes, embryos, organs, cells or other tissues do not discriminate on the grounds of sexual orientation, gender identity, gender expression or sex related characteristics.”

The Constitution in Article 12 guarantees the right to equality before the law and equal protection of the law of all persons. It prohibits discrimination on the grounds of race, religion, language, caste, sex, political opinion, and place of birth but does not explicitly prohibit discrimination on the grounds of sexual orientation, gender identity or gender expression. However, the Sri Lankan Government has emphasised before various United Nations bodies that Article 12 guarantees the right to freedom from discrimination on the grounds of sexual orientation and gender identity. But explicit provisions, such as Sections 365 and 365A of the Penal Code and the actual application of the law seem to negate this argument. 

World has evolved

Countries around the world are moving beyond outdated blood donor eligibility requirements and have loosened restrictions on MSMs donating blood. The same is true for sex workers. In the United Kingdom, following a “donation not discrimination” campaign by activists, an amendment was brought to the blood donation rules in 2021.The upshot of this is that today, eligibility is based on the donor’s individual experience as opposed to their real or imputed belonging to a particular category. Regardless of gender or sexual orientation, if anyone had anal sex with a new partner or multiple partners in the previous three months, they would have to wait three months before donating. Thus, MSMs who have had the same partner for three months or more are allowed to donate blood. Similar changes to the blood donation policy have been made in France, Canada, Italy, Spain, and Israel, among others. Recently, Germany declared that similar rules would be implemented from April, 2023. 

Instead, as it stands, the blood donation form provided by the NBTS requires an outright admission of one’s sexual orientation by asking if the would be donor is aware that the above-mentioned (i) to (v) categories are not qualified to donate blood, and if the donor and/or their partner falls within any of them. Paradoxically, such an approach may actually encourage any potential blood donor to be dishonest about their sexual orientation in order to realise their wish to donate blood. Interviews conducted with a number of concerned individuals appear to show the emergence of an informal practice by which gay and bisexual donors have either not identified themselves as MSMs or have indicated their preference to provide a different answer to the question in order to donate blood. Sometimes, even if they identify themselves as MSMs, they have been allowed to donate blood after an individual risk assessment. An individualised evaluation of any potential risks associated with donating blood does in fact negate any purported need for a blanket ban based on sexual orientation, especially since the NBTS screens all donated blood for HIV, hepatitis B and C, syphilis and malaria, as recommended by the WHO. 

Positive impact

The beneficial impacts of reforming Sri Lanka’s outdated blood donation policy are manifold. First, if the risk assessment is based on individual behaviour and not on sexual orientation with all its associated baggage of discrimination and stigma, questions regarding “risk behaviours” would be more likely to elicit accurate and truthful responses. Second, researchers have found that when there is less stigma around consensual same sex relations and HIV, more people would get themselves tested for HIV. Revising the guidelines would thus promote more HIV testing, including among gay and/or bisexual men. People would also be more aware of their HIV status due to testing, helping them reduce transmission and seek treatment. Third, revising the guidelines would enhance the public health authorities’ ability to meet the demand for donated blood. 

When same sex sexual orientation is identified with “risk behaviours”, it dehumanizes an entire category of individuals exposing them to discrimination, stigma, ridicule and harassment. Reforming the existing discriminatory guidelines would positively improve the health and morale of MSMs and sex workers, while also having a valuable impact on blood donation. 

(The writer is the National Legal Advisor – Sri Lanka at the International Commission of Jurists.)

The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.