Navigating a ‘Constitutional Borderland’: How the Transgender and Disability Movements share the aspiration to move beyond a selective, imagined personhood

TWO MONTHS AGO, the Transgender Persons (Protection of Rights) Amendment Act, 2026 received presidential assent, as it dismantled a decade of hard-won legal recognition for transgender persons in India. Where the Transgender Persons (Protection of Rights) Act, 2019 (‘2019 Act’) had foregrounded self-identification and embraced a broad, inclusive definition of transgender personhood, the 2026 Amendment replaced it with a closed enumerated list of State-approved identities, like kinner, hijra, aravani, and jogta, all drawn from an imagination that treats transness as either divine or ‘congenital’. Those outside this list who arrive through self-determination find themselves, in law, without existence.

To understand what the 2026 Amendment does, and what it portends, it is necessary to read it alongside another movement that has been navigating the same terrain for longer – the disability rights movement in India. At first glance, the pairing may seem unlikely. Yet, both movements inhabit what this piece calls a ‘constitutional borderland’ – a zone in which the formal grammar of rights coexists with the substantive grammar of exclusion, where the promise of equal citizenship is perpetually about to be redeemed and perpetually deferred. 

Both movements have experienced the same double bind of the ‘liberal legalism’ underlying court victories that celebrate the visible and the spectacular while leaving the margins unmoved. Its judicial framings have validated a narrow band of acceptable embodied experiences while naturalising the exclusion of the rest.

Both these movements have also navigated a complex relationship with the State. The disability movement has navigated a type of postcolonial nationalism that has sought to homogenise political bodily experience by validating only those disabled identities that are already assimilable to its ideological project (known as ‘crip nationalism’). The transgender community has had to deal with a Hindu nationalist State endorsing a selective, imagined transgender personhood, that simultaneously criminalises and excludes those transgender persons who do not fit within a fixed Brahminical imagination (we call this ‘homoelectivism’, which we explore in more detail below, borrowing from the concept of ‘homonationalism’).  At the same time, the piece argues that the invocation of ‘Swadeshi Jurisprudence’ by several judges hints at the Supreme Court’s resort to methodological nationalism. In this methodological proposition, the Supreme Court is showing an insular approach, while stigmatising learnings from foreign jurisdictions as ‘imported concepts.’ In this insular methodological approach, courts, while dealing with subaltern sexualities and subaltern embodiments, may resort to the Brahminical canon. 

Together, these frameworks reveal that what is unfolding through the 2026 Amendment is not an aberration but a coherent political project that the disability movement has been contending with, in its own register, for years. Both movements, in other words, hold lessons for each other which the piece attempts to draw out.