A guideline from India’s National Blood Transfusion Council and the National AIDS Control Organization under the Health and Family Welfare Ministry permanently prohibits men who have sex with men from donating blood. This prohibition, however, may change with the Supreme Court reviewing a challenge to the constitutionality to the 2017 blood donor rule.

The Supreme Court on July 30 agreed to hear the challenge that a gay man from Delhi — Shariff D. Rangnekar, director of the Rainbow Literature Festival — brought. Lawyer Rohin Bhatt drafted the complaint and Ibad Mushtaq filed it.

The rule also applies to transgender people, female sex workers, and LGBTQ people.

Rangnekar pointed out these rules were rooted in a highly prejudicial and outdated perspective from the 1980s in the U.S. 

He noted many countries, including the U.S., UK, Canada, and Israel, have since revisited their guidelines, adopting new policies that no longer impose blanket bans on gay men or genderqueer people from donating blood.

“It is presumed that a particular group of persons may be suffering from sexually transmitted disease,” said Rangnekar in his lawsuit, according to the New Indian Express, a major English newspaper in India. “Medical technology and education, especially in the field of hematology, has progressed tremendously. The screening of donors is conducted for every donation before a transfusion.”

Rangnekar urged the Supreme Court to reconsider the blanket prohibition, arguing such a sweeping ban is unreasonable. He asserted this prohibition violates fundamental rights, including equality, dignity, and life, safeguarded under Articles 14, 15, 17, and 21 of the Indian Constitution. 

Rangnekar further argues the ban effectively denies LGBTQ people full participation in society, relegating them to the status of second-class citizens.

He contends that clauses 12 and 51 of the 2017 blood donor guidelines are both discriminatory and unconstitutional, because they permanently exclude LGBTQ people from donating blood. Rangnekar argues these provisions unfairly single out LGBTQ persons, barring them from contributing to a life-saving cause, and thus, violates their fundamental rights. Rangnekar also emphasized that such exclusion perpetuates stigma and reinforces inequality, contradicting the principles of justice and equality the constitution enshrines.

The Supreme Court on Aug. 2 took a significant step by issuing a formal notice to the Indian government regarding Rangnekar’s case.

Led by Chief Justice Dhananjaya Yeshwant Chandrachud, the three-judge bench sought responses from the National AIDS Control Organization and the National Blood Transfusion Council. This move marked the court’s recognition of the serious constitutional issues raised in the petition, setting the stage for a critical review of the rules that have long excluded LGBTQ people from donating blood.

The Union Health Ministry in 2023 responded to a Supreme Court petition that Thangjam Santa Singh filed, which challenged the 2017 blood donor selection criteria. Singh sought the removal of provisions that barred trans people, MSM, and female sex workers from donating blood. 

The Union Health Ministry at the time defended the exclusionary clauses in the Supreme Court, stating they are based on substantial evidence that demonstrates trans people, MSM, and female sex workers are at increased risk for HIV, Hepatitis B, and Hepatitis C. The ministry argued these guidelines were designed to protect the safety of the blood supply, though this stance has faced significant criticism for perpetuating stigma and discrimination against marginalized communities.

Rangnekar during an interview with the Washington Blade said India’s blood donation ban reflects a complete bias against the LGBTQ community. He emphasized this pattern of exclusion is not just about blood donation, but is part of a broader effort to deny the community basic rights and dignity. 

“There are many groups that could be high risk in certain areas, but you have a deterrence system in place,” said Rangnekar. “Globally, India claims to be a superpower, It is a country that has sold medical tourism to many parts of the world, and it is a hub for people coming from the developing world to have medical treatment, so what stops the government from having a testing system in place to allow us blood donation, but to have a blanket ban is absolute bias and nothing less than rubbish. We are in a country where there is a shortage of blood.”

Rangnekar also expressed optimism about his case.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India, and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

The Delhi High Court on Aug. 13 directed the Indian government to clarify its stance on non-consensual sexual offenses against LGBTQ people and men under the country’s revised penal code. The court’s order has spotlighted the gaps in the legal framework, urging the government to address the protection of these vulnerable groups within the new law.

The Indian LGBTQ community on Sept. 6, 2018, celebrated one of its most significant legal victories when the Supreme Court struck down Section 377 of the country’s colonial-era penal code that criminalized consensual same-sex sexual relations. The Supreme Court invalidated the law for consensual acts, but it retained provisions that concern non-consensual sex to protect transgender people and other vulnerable communities.

The Bharatiya Nyaya Sanhita, which revised the existing penal code, took effect on July 1 and entirely omits the law.

“Where is that provision? There is no provision at all,” asked the court. “There has to be something. The question is that if it is not there, then is it an offense? If an offense is not there and if it is obliterated, then it is not an offense.”

The petitioner who approached the Delhi High Court said the omission of protections in the new law could have unforeseen consequences. The petitioner, lawyer Gantavya Gulati, argued that even after the Supreme Court’s 2018 ruling that decriminalized consensual same-sex sexual relations, Section 377 continued to provide crucial protection to men and LGBTQ people from non-consensual sexual acts.

The Parliamentary Standing Committee on Home Affairs, in its 2023 report on the Bharatiya Nyaya Sanhita, noted that omitting Section 377 would result in the absence of penalties for non-consensual sexual offenses against men and trans people, and for acts of bestiality. The committee, therefore, recommended including Section 377 in the Bharatiya Nyaya Sanhita.

The Supreme Court in its 2018 ruling referred to the portions of Section 377 that criminalized consensual sex as “irrational, indefensible, and manifestly arbitrary.” The Supreme Court at the time emphasized authorities used Section 377 as a weapon to harass LGBTQ people, leading to widespread discrimination.

“Persons who are homosexuals have a fundamental right to live with dignity,” said the Supreme Court. “We further declare that such groups (LGBTQ) are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them. We further direct that Section 377, insofar as it criminalizes homosexual sex and transgender sex between consenting adults, is unconstitutional.”

Acting Chief Justice Manmohan and Justice Tushar Rao Gedela on Aug. 12 led a bench of justices who heard the case that Gulati brought.

The petitioner argued that “the absence of Section 377 of the Indian penal code poses a threat to every individual, but especially to LGBTQ persons.” The petitioner also highlighted that the Bharatiya Nyaya Sanhita does not include any protections for a man who is sexually assaulted by another man.

The Indian government contended the court could not compel parliament to enact a specific provision, even in the presence of a legal anomaly. The government’s counsel emphasized a motion had already been submitted, highlighting this issue to the national government, and it is currently under consideration. The High Court, led by Manmohan, in response directed the government to return on Aug. 28 to clarify its position on non-consensual sexual offenses in light of Section 377’s omission.

The remnants of Section 377 after the 2018 judgment were gender-neutral, offering protection regardless of gender. When the Bharatiya Nyaya Sanhita came into effect, however, the government completely omitted this provision from the new law. It failed to introduce an alternative to protect male rape victims and trans people. Section 63 of the Bharatiya Nyaya Sanhita instead defines rape in a highly gendered manner: As an act where a man’s penis penetrates a woman’s vagina, mouth, urethra, or anus, or compels her to do so with him or another person. This definition narrows the scope of the law, failing to provide adequate protection for LGBTQ individuals.

A report the Guardian published in 2018 found 71 percent of men respondents reported being abused, yet 84.9 percent of them never disclosed their experiences to anyone. The report highlighted the primary reasons for this silence were shame (55.6 percent), followed by confusion (50.9 percent), fear (43.5 percent), and guilt (28.7 percent). The findings shed light on the profound psychological barriers that prevent male survivors from seeking help or sharing their stories.

Gulati recently spoke to the Washington Blade about the case.

He said his concern is the Bharatiya Nyaya Sanhita in its current form primarily frames rape as an act committed by a man against a woman. This narrow definition, he argued, fails to encompass the full spectrum of sexual abuse endured by trans people and men, particularly those within the LGBTQ community.

Gulati emphasized that while there are existing laws that address various forms of sexual violence, they often fall short in specifically protecting these marginalized groups in the way that is urgently needed. He underscored this significant omission within the Bharatiya Nyaya Sanhita indicates a pressing need for reform. Gulati suggested the Bharatiya Nyaya Sanhita must be thoughtfully revised and expanded to ensure that every person, regardless of their gender or sexual orientation, is afforded the protection they deserve from sexual abuse.

“Whether Parliament’s decision was deliberate or not, the removal of Section 377 provision has raised concerns,” Gulati told the Blade. “Section 377 of the Indian penal code covered important issues, like bestiality and other non-consensual acts, that are not clearly addressed in the BNS (Bharatiya Nyaya Sanhita). By leaving out this provision, the law may no longer provide the same level of protection against these acts. It’s a decision that has significant consequences, especially for those who are vulnerable.”

He also said the roles of the courts and parliament are different in a democracy.

The courts’ job is to interpret the law and make sure it is applied fairly, while parliament is responsible for creating and changing laws. Gulati said courts can point out when a law is missing or needs improvement, but they cannot force parliament to make a specific law. Gulati said that the government’s position reflects this balance of power, acknowledging only elected representatives have the authority to make laws.

Sudhanshu Latad, the dedicated advocacy manager at Humsafar Trust, an organization at the forefront of promoting LGBTQ rights in India, also spoke with the Blade.

Latad reflected on the crucial role the judiciary has historically played in bridging gaps within existing legal frameworks, particularly when they fall short of safeguarding specific groups or subgroups. Latad said the Delhi High Court’s decision to hear the Section 377 case is emblematic of this judicial intervention.

“We hope that the Honorable Delhi High Court orders the parliament to create a provision to separately address protection of transgender persons and LGBTQ+ community or reinstitute Section 377 until such provisions are made separately in BNS (Bharatiya Nyaya Sanhita),” said Latad. “Section 63 of BNS (Bharatiya Nyaya Sanhita) primarily presents itself to be written with a heteronormative perspective.”

“While if read with the NALSA vs Union of India judgment 2014, trans women may be able to seek recourse under this, there is an element of ambiguity for assigned males at birth nonbinary persons,” he added. “It does though take into consideration any person raping a woman as it refers to objects being used for the purpose of rape, which may be the case in an instance of woman or nonbinary persons raping a woman.”

Latad told the Washington Blade the Bharatiya Nyaya Sanhita’s introduction is a pivotal point of transformation for the Indian legal system and strengthening it to a position to be able to govern and protect a country with the highest population in the world may be a strenuous affair. He said rape and other sensitive topics may need longer discussions.

“Hence, I feel this is a great opportunity — a clean slate — to introduce a robust gender-neutral law against rape,” said Latad. “I am hopeful that parliament will view this the same way and will take into consideration the recommendations made by the Standing Committee. If they do not retain Section 377 to protect consent, I hope they introduce something equivalent that protects every citizen of the country from rape.”

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India, and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

India’s LGBTQ community is watching Vice President Kamala Harris’s presidential campaign with hopeful anticipation.

“Can she be the catalyst for change we’ve been waiting for?” is the question echoing through the colorful streets of India’s metropolises. With her history of advocating for LGBTQ rights, Harris’s candidacy feels like a rainbow beacon in the political storm. As her campaign gains momentum, the Indian LGBTQ community finds itself not just spectators but fervent cheerleaders, hoping her leadership might inspire similar strides in their land. 

Her mother, Shyamala Gopalan, who was born into a Brahmin family in 1938, and her grandfather, PV Gopalan, who hailed from the quaint village of Thulasendrapuram in Tamil Nadu state, link Harris to India’s rich cultural tapestry. This connection not only invigorates her campaign as she seeks the White House, but also resonates deeply with LGBTQ Indians who see in her a beacon of progressive change.

Harris’s grandfather later moved to New Delhi to become a civil servant in British-ruled India, paving the way for Gopalan’s journey to the U.S. Her mother’s pursuit of biomedical science at the University of California, Berkeley planted the seeds for her future political aspirations. 

The Independent reports Harris’s uncle, Balachandran, from Delhi and her aunt, Sarala, from Chennai still visit their local temple about once a year, keeping the family tethered to their village and cultural roots.

The State Department notes the relationship between India and the U.S. is one of the most strategic and consequential of the 21st century. 

‘The U.S. supports India’s emergence as a leading global power and a vital partner in promoting a peaceful, stable, and prosperous Indo-Pacific region,” it reads. 

Harris during Indian Prime Minister Narendra Modi’s visit to the U.S. in June 2023 underscored the deep-rooted ties between the two countries, highlighting shared democratic values and the significant contributions of Indian Americans. 

India in 2018 decriminalized consensual same-sex sexual relations. 

The Indian Supreme Court last October ruled against marriage equality. The justices have agreed to consider an appeal of their ruling.

Harris during a 2023 interview emphasized she has been dedicated to human rights, equality, and LGBTQ issues throughout her career. 

Harris was California’s attorney general when she declined to defend Proposition 8, a same-sex marriage ban that voters in her state approved in 2008.

The U.S. Supreme Court on March 26, 2013, heard oral arguments in a case that challenged Prop 8. The justices in a 5-4 ruling said anti-gay groups did not have standing to defend the ban and allowed a federal court ruling that declared it unconstitutional to remain in place.

Same-sex couples have been able to marry in California since June 28, 2013.

“It was clear that this is a case that is about fundamental notions of justice and equality and liberty,” Harris told the Blade after the Supreme Court’s oral arguments.

President Joe Biden in 2021 signed a memo that committed the U.S. to promoting LGBTQ and intersex rights abroad as part of the Biden-Harris administration’s overall foreign policy.

Harris during a 2023 press conference with Ghanaian President Nana Afuko-Addo that took place in Accra, his country’s capital, noted “a great deal of work in my career has been to address human rights issues, equality issues across the board, including as it relates to the LGBT community.”

“I feel very strongly about the importance of supporting the freedom and supporting and fighting for equality among all people and that all people be treated equally,” said Harris. “This is an issue that we consider, and I consider to be a human rights issue and that will not change.”

Ghana is among the countries in which consensual same-sex sexual relations remain criminalized. 

Harris’s visit to the country coincided with debate over a bill that would, among other things, criminalize LGBTQ allyship. Afuko-Addo has yet to sign the measure — the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill — that MPs passed in February.

Manvendra Singh Gohil, who describes himself as the world’s first openly gay prince, is from Gujarat state and is an activist who runs Lakshya Trust. He told the Washington Blade that Harris is seen not just as a powerful person, but also a serious candidate. Gohil highlighted she embodies not only the hope of representation but also the merit, resonating deeply with the global LGBTQ community.

“Merit and diversity are not mutually exclusive,” he said. “There is merit in diversity, but we must make an effort to look for diversity in merit, too. I wish Kamala all the best and hope that she can carry the energy and dreams of the millions. If she is elected, I hope she serves to be the president for the entire country, the Democrats, Republicans and Independents alike.”

Deepak Kashyap, India’s first openly gay psychologist, told the Blade that Indians view Harris with hope.

“The LGBTQ community, for better or for worse, across the world, follow American examples to quite an extent,” said Kashyap. “Holding the presidency means holding the hopes and dreams of communities who find themselves at the mercy of every election cycle. I wish you well and hope to meet you in the Oval Office someday.”

Harris has often reminisced in interviews about her childhood visits to Thulasendrapuram, fondly recalling walks on the Chennai beach with her grandfather when she was just five. Though those memories of sun-soaked sands linger, she hasn’t set foot in India since becoming vice president.

Her nostalgic tales add a touch of personal warmth to her political journey, endearing her to the Indian LGBTQ community and beyond.

Negha Shahin, the first transgender woman to win an award at the 52nd Kerala State Film Awards and a native of Tamil Nadu, told the Blade that while Harris’s connection to state is heartwarming, it doesn’t directly influence her stance on LGBTQ issues. Shahin pointed out it would be a stretch to attribute Harris’s progressive views on LGBTQ rights to her mother’s background.

“What truly matters in understanding the struggles faced by the trans and queer community is the need for proper education and an open mind,” said Shahin. “Kamala Harris has spoken out about trans rights because she recognizes the importance of these issues and the need to address the discrimination and challenges faced by the LGBTQIA+ community.”

“Her advocacy stems from a broader commitment to equality and justice, rather than any specific cultural influence,” she added.

Shahin said it would be a monumental moment if Harris wins.

“If she wins also I wish it will impact the Indian LGBTQIA community,” said Shahin. “If she holds a position of power her administration might engage in diplomatic efforts to encourage other nations to advance human rights, including LGBTQIA+ rights. This could lead to international pressure on countries like India to improve their legal and social stance on LGBTQIA+ issues.”

Harish Iyer, an Indian activist who participated in the State Department’s International Visitor Leadership Program in 2016, told the Blade the LGBTQ community needs world leaders who are allies and community members.

“Kamala Harris’s ascend to the top of the Democratic ticket is thus a ray of hope,” said Iyer. “She has been unwavering in her allyship. In a world of deniers of queerdom, she is in sync with the ground realities of queer existence.”

Michael K. Lavers contributed to this article.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India, and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on X at @mohitkopinion.