Mainstream WeeklyJune 2026
Abstract
The Transgender Persons (Protection of Rights) Amendment Act, 2026, is widely described as a regression, a reversal of the rights framework established in National Legal Services Authority v Union of India (2014). This article concurs, but contends the regression has a distinct character that existing commentary has not been fully articulated. Drawing on B.R. Ambedkar’s distinction between constitutional morality and social morality, it argues that the Amendment does not merely remove rights, it reinstates social morality as the governing principle of legal recognition, substituting the state’s authorisation for the individual’s self-identification. The Supreme Court hearing of May 2026 makes this visible in a further and troubling way: social morality is already operating as a prior condition of judicial cognition, before constitutional argument is even heard. The piece reads the Amendment and the hearing through that diagnostic.
B.R. Ambedkar’s distinction between constitutional morality and social morality was fundamentally a claim about what should govern the state’s relationship with its subjects. Social morality is the morality of the majority, the culmination of custom, convention, and communal intuition about how society is naturally organised. Constitutional morality demands something harder: fidelity to constitutional values even when, social consensus pulls in a different direction. The Constitution, on this account, is not an expression of society as it is. It is a commitment to society as it must become.
The Transgender Persons (Protection of Rights) Amendment Act, 2026, is, on one reading, a straightforward legislative reversal, the undoing of rights that took decades to establish. That reading is correct. But it is not complete. What the Amendment does, more precisely, is to restore social morality to the centre of legal recognition for transgender persons, and in doing so, it reverses not just the 2019 Act but the constitutional logic that the Supreme Court articulated in National Legal Services Authority v Union of India in 2014 [1].
This article makes that argument in three moves. First, it shows what NALSA actually did, and why that matters for reading the Amendment. Second, it reads the Amendment’s specific changes through the constitutional-versus-social-morality distinction. Third, it turns to the Supreme Court hearing of May 4, 2026, where something instructive happened: social morality entered the courtroom not as an argument made by either party, but as a prior framing brought by the bench itself.
NALSA and the constitutional subject
The NALSA judgment of 2014 did more than recognise transgender persons as holders of constitutional rights. It constituted them as constitutional subjects, persons whose legal standing derives from their own self-identification, not from biological assignment, medical classification, or state verification [1].
The Court rejected what it called the ’biological test’ for gender identity and adopted a ’psychological test,’ holding that gender identity is fundamentally linked to an individual’s deeply felt sense of self. Constitutional rights, the Court held explicitly, cannot be made contingent upon medical procedures or state approval. The right to self-identification was located within Articles 14, 19 and 21 [1].
This is Ambedkar’s constitutional morality operating in practice. The social morality of 2014, and of 2026, holds that gender is a biological fact, that male and female are the natural and exhaustive categories, and that departures from this binary are at best medically explicable and at worst socially dangerous. NALSA held that the Constitution does not ratify this. The individual’s self-understanding governs, not the community’s consensus.
The Amendment: authorisation replaces recognition
In the midst of protests and an opposition walkout, the Transgender Persons (Protection of Rights) Amendment Act, 2026, was introduced in the Lok Sabha on March 13, 2026, passed by voice vote on March 24. It was affirmed in the Rajya Sabha the following day, and signed into law on March 30 [2]. The government described it as a corrective, a remedy for the ambiguity and implementation failures of the 2019 Act. The alteration it makes gives us alternative narratives.
The Amendment deletes Section 4(2) of the 2019 Act, which stated that a person recognised as transgender ’shall have a right to self-perceived gender identity.’ This is the legislative anchor of the NALSA framework, and it is simply removed [3]. In its place, the Amendment establishes an ’authority’ headed by a Chief Medical Officer or Deputy CMO, whose favourable recommendation is required before a District Magistrate can certify someone as transgender. The state no longer enables self-identification. It authorises identity.
The significance of this shift is precise. Under NALSA, the transgender person’s legal standing was grounded in their own self-understanding , the state’s role was facilitative. Under the Amendment, legal standing is contingent on the state’s determination of authenticity. The question ’who are you?’ is no longer answered by the person. It is answered by a medical board.
Three further changes compound this. A mandatory National Transgender Registry is introduced, and medical institutions are required to report details of every person who undergoes gender-affirming surgery to the District Magistrate and the authority [3]. Identity becomes a matter of state surveillance. New provisions under Section 18 criminalise the ’compelling’ of a person to ’outwardly present a transgender identity’, language sufficiently open that the Indian Association of Aesthetic Plastic Surgeons, representing over 1300 specialists, warned before assent that it would create a chilling effect on gender-affirmative care [4]. When asked in Parliament whether this was recognised, the Minister of State for Social Justice said the provision did not target ’legitimate’ gender-affirmative care, without defining what ’legitimate’ means [4]. That definitional silence is not an oversight. It is the mechanism: the state produces a zone of indeterminacy in which practitioners self-censor without prohibition.
Additionally, the Amendment’s revised definition of ’transgender person’ also conflates those who have been pushed into a transgender identity through mutilation or coerced surgery with persons of authentic transgender identity [3]. The petition before the Supreme Court has described this as a ’stigmatising and arbitrary classification’ [5]. The Economic and Political Weekly highlighted the compounding effect: stripping protections from those already navigating structures intended to erase them, while the selectively recognising specific gharana-based identities, kinnars, hijras, aravanai, jogtas, but not others, reflects a politics of selective inclusion that the Bill’s stated goals do not clarify [6].
The gap between certification and welfare delivery, non-consensual intersex procedures, dysfunctional welfare boards, and other operational issues mentioned by the government are not fully addressed. There are no provisions for marriage, adoption, inheritance, or succession. The Bill "tightens some definitions and increases penalties for forced exploitation, but leaves every core structural flaw untouched," according to Gopi Shankar Madurai, Special Monitor for SOGIESC Rights at the National Human Rights Commission [7]. The Mariwala Health Initiative, in a statement signed by over 1062 mental health practitioners, criticised the legislation as reinstating the ’obsolete and harmful idea that gender diversity is a pathology needing diagnosis’ [4].
As a result, the 2019 Act is not fixed by the Amendment. It resolves the implementation issue by restricting who is eligible for protection. It accomplishes this by restoring social morality, the belief that authentic identity requires external validation, to the governing position that NALSA had displaced.
Social morality in the courtroom
On May 4, 2026, the Supreme Court heard multiple petitions challenging the Amendment’s constitutionality under Article 32 [5]. The core argument of petitioners was that the Amendment moves away from NALSA’s settled framework. It substitutes medical and bureaucratic verification for self-recognition, and violates Articles 14, 15, 19 and 21. The Court issued notice, declined an interim stay, noting the Act had not yet been notified, and referred the matter to a three-judge bench [5].
However, it is an interchange that requires consideration prior to those procedural consequences. The Chief Justice of India Surya Kant brought out the "danger" of people "masquerading" as transgender in order to receive welfare benefits and reservations without any prompting from either side [8]. Senior Advocate A.M. Singhvi’s response was measured: there are currently no reservations for transgender persons, and the likelihood of identity fraud is ’.001%.’ Meanwhile, the Act ’drives the transgender community to a vanishing point’ [8].
The CJI’s concern is not grounded in any constitutional provision. It is not derived from the petitioners arguments or from the Union’s defence. It enters the hearing from elsewhere. From the social imagination of misuse, from the intuition that self-identification creates a vulnerability the state must guard against. This is social morality operating as a prior condition of judicial cognition. The constitutional question of whether the individual or the state determines identity is framed, before argument begins, through the lens of suspicion.
Ambedkar would have recognised this. Constitutional morality is difficult precisely because it requires the institutional actor, the judge, the legislator, to hold the constitutional commitment against the pull of exactly these social intuitions. When the bench’s framing of the question already mirrors the Amendment’s logic, the constitutional challenge faces not just a legal argument to answer but a prior disposition to dislodge.
What constitutional morality demands
To deploy Ambedkar’s distinction here is not to claim that he spoke to transgender rights, he did not. It is to use his analytical apparatus, which is not community-specific, to name what is happening. Constitutional morality demands that the state uphold rights against prevailing social consensus, not in conformity with it. The content of the social morality being resisted is variable. What is constant is the structure: the Constitution’s commitments do not bend to communal intuition.
NALSA applied this logic to gender identity in 2014. The transgender person’s constitutional standing derives from self-identification, not from medical or state authorisation. The 2026 Amendment undoes this by restoring social morality, the intuition that authentic identity must be externally verified, that self-declaration creates misuse, that the state’s role is to adjudicate rather than enable, to the centre of the legal framework.
The Supreme Court challenge now before a three-judge bench will need to answer whether that restoration is constitutionally permissible. On the basis of NALSA, the answer should not be difficult. What the May 2026 hearing suggests is that it may be.
(Author: Divya Parmar is an Assistant Professor in Political Science at the D.D. Kosambi School of Social Sciences and Behavioural Studies, Goa University, and a doctoral candidate working on judicial reasoning, constitutional morality, and rights adjudication in India.)
References
[1] National Legal Services Authority v Union of India, (2014) 5 SCC 438.
[2] ’Transgender Bill passed by voice vote in Lok Sabha amid walkout by Opposition MPs,’ The Hindu, March 24, 2026; ’Transgender Amendment Bill gets President Murmu’s assent,’ The Hindu, March 30, 2026.
[3] The Transgender Persons (Protection of Rights) Amendment Act, 2026 (Bill No. 79 of 2026).
[4] Ashna Butani, ’Trans Amendment Act may disrupt gender-affirmative care, warn health practitioners,’ The Hindu, April 3, 2026.
[5] Supreme Court Observer, ’Challenge to the Transgender Persons Amendment Act, 2026: Laxmi Narayan Tripathi v Union of India,’ W.P.(C) No. 548/2026, https://www.scobserver.in/cases/challenge-to-the-transgender-persons-amendment-act-2026/
[6] ’Violation of Transgender Rights and Autonomy,’ Economic and Political Weekly, vol lxi no 12, March 21, 2026.
[7] Gopi Shankar Madurai, ’The Transgender Persons Amendment Bill is a flawed fix,’ The Hindu, March 26, 2026.
[8] Krishnadas Rajagopal, ’SC flags risk of misuse in transgender self-identification debate,’ The Hindu, May 4, 2026.