This Case Could Revolutionise the Treatment of Transgender Prisoners in South Africa
Jade September is serving her sentence in a male prison.
Jade September is a transgender woman currently serving a 15-year prison sentence in Cape Town, in a correctional facility for men.
Now, she plans to take the Department of Justice and Correctional Services to the Equality Court, calling to be allowed to dress as a woman, according to Lawyers for Human Rights (LHR).
According to LHR’s spokesperson, Carol Mohlala, the case will appear in the Cape High Court, sitting as an Equality Court.
“LHR will argue that the prison system has singled her out, harassed, and unfairly discriminated against her for expressing her gender identity, contrary to the Promotion of Equality and Unfair Discrimination Act 4 of 2000 (the Act),” Mohlala said in a statement.
September is currently serving her sentence at the Helderstroom Maximum Correctional Centre in Caledon, in Cape Town.
“As is often the case for transgender people in South Africa, she never had an opportunity to change the gender marker in her ID, nor has she ever had access to gender-affirming health care,” added Mohlala. “For these reasons, she is incarcerated as a man.”
The court is expected to decide on November 26 whether a correctional facility has to take steps to reasonably accommodate trans women prisoners who are currently in a male prison.
This includes, according to news site GroundUp, allowing transgender female prisoners to wear make-up, female clothing, and be addressed using female pronouns and their chosen names, among other things.
September has previously told LHR: “My gender expression is something that I have had to constantly struggle to achieve and maintain throughout my life. It is the only way I can express a vitally important component of my identity, which is my gender.”
She added: “It goes to the core, and is the essence of who I consider myself to be as a human being.”
According to Justice Action, a Sydney-based movement that represents people held in Australian prisons and hospitals, the majority of transgender inmates are male-to-female (M2F). They may be held in specialised units in male correctional centres, or may request and be transferred to female correctional centres.
According to Justice Action, female-to-male (F2M) transgender inmates are usually held, citing reasons of personal safety, in female correctional centres although they could be placed in male centres where suitable facilities exist.
“Decision about placements of transgender inmates is the responsibility of the Department of Corrective Services, although Corrections Health Service may be consulted,” it said.
Justice Action said systemic problems relating to transgender inmates are linked to discrimination.
South Africa’s Marang Men’s Project found — in research carried out in 2012 and 2013 — that there was an unusually high estimate of police discrimination due to sexual orientation in Cape Town.
Some 37% of respondents said they had experienced police discrimination in Cape Town, it reported, compared to 26% and 21% in Durban and Johannesburg respectively.
But Justice Action said the line between prisoner safety and transphobic discrimination is easily blurred by prison authorities, and prison officials can sometimes conceal their discriminatory behaviour, it added, by claiming that they are acting to protect transgender prisoners.
“There is also a great deal of difficulty in dealing with the establishment of their personal sense of identity within a system that fails to recognise the individual,” the organisation added.
It explained that gender dysphoria is a recognised medical disorder, and its treatment requires the individual be supported in adopting a gender different to that of their birth sex.
“In attempting to achieve such a transition, transgender people are continually discriminated against and victimised at a much higher rate than is the case for the general community, including homosexuals,” it said. “Such problems are amplified intensely within a correctional setting.”
LHR said that throughout September’s incarceration, prison officials have denied her the right to express her gender through her hairstyle, dress, and the use of small amounts of make-up.
“She has also been subject to verbal abuse and harassment from prison officials, and at one stage placed in segregated confinement after trying to express her gender,” said LHR in a statement. “Her personal items have been arbitrarily confiscated, and she was forced to cut off her braided hair, which is a marker of [her] feminine identity.”
The LHR said this treatment, in more than one prison facility, has traumatised September, and caused considerable damage to her mental health, resulting in a suicide attempt in December 2017.
“There are no separate prisons for transgender or gender non-conforming people,” said Sanja Bornman, attorney in the LHR gender Equality Programme. “In fact, as far as prison laws and policies are concerned, transgender people simply do not exist. This is unacceptable.”
Bornman added that, according to prison authorities, forcing September to conform to a male identity is for her own safety.
“However, they have failed to submit evidence to show that September’s expression of her gender identity, specifically, puts her at any more risk than any other inmate in prison,” she continued.
Bornman said this matter “ultimately turns on the right of all people to be afforded equality and dignity while in the care of the state — even when that state care is the prison system.”
“Unlawful discrimination, especially by state employees, is not part of anyone’s prison sentence, and no one should be punished by the state for their gender identity, sexual orientation, religious belief, or any other immutable characteristic,” she added. “It is also time for the state to realise that none of its systems and services may exclude or discriminate against transgender and gender non-conforming people any longer."
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