The Department of Correctional Services received a tongue lashing for the way it has treated transgender prisoner Jade September in a Western Cape High Court ruling giving her the right to be called a woman in the men’s prison she is being held in.
Judge Chantal Fortuin ordered that September’s confiscated jewellery, panties and cosmetics should be returned to her, and that she not only be allowed to use them, but she should also be allowed to express herself as a woman.
Judge Fortuin said the way September had been treated violated her constitutional rights to freedom of expression and dignity.
She is serving a 15-year sentence for the murder of Graham Flax in Sea Point in 2013.
They had met through the internet and September had admitted to killing Flax when she was high.
In an application brought against the department by Lawyers for Human Rights, the court heard in last November’s application on behalf of September that she never had the chance to change her gender marker in her ID, nor did she have access to gender-affirming health care, and was imprisoned as a man.
As a result, prison officials denied her the right to express her gender through her hairstyle, dress, and use of small amounts of make-up.
Verbal abuse and harassment
September was subjected to verbal abuse and harassment from prison officials, and at one stage placed in segregated confinement after trying to express her gender.
Her personal items were confiscated, she was forced to cut off her braided hair, a marker of her feminine identity, and incidents such as these traumatised her to the extent of attempting suicide in December 2017.
Gender Dynamix, represented by the Legal Resources Centre, joined as friends of the court and on Monday they and the Sex Workers Education and Advocacy Taskforce were out in force for the judgment.
Judge Fortuin began by saying her judgment was not about whether the binary model of gender should be expanded to include a third gender, stating the current binary model still stood.
She said the current medical and legal classification as a man also still stood, adding the case was about the right to, and application of, human dignity.
‘Equality, dignity, freedom of expression’
Just because September was incarcerated, did not mean she had lost these rights, said Judge Fortuin.
With bated breath, the people who filled the gallery listened intently as Judge Fortuin explained that when the South African government backed Olympic medallist Caster Semenya when she was under attack over her gender by the International Association of Athletics Federations, it displayed the correct attitude in terms of Semenya’s constitutional rights.
“In this case, the respondents have failed in their duty to accommodate the applicant reasonably.”
She said September’s case was primarily about the constitutional rights to equality, dignity, freedom of expression and the prohibition of inhumane treatment, adding she hoped her order would help remedy that.
Judge Fortuin ordered that:
- The department must introduce gender sensitivity training for all new and existing officials within 12 months. Its failure to let September wear female underwear or use the female pronoun “constitutes unfair discrimination and is therefore unlawful and unconstitutional”;
- The department must remove from September’s prison file any record of charges or infractions relating to her expressing her gender identity. The standing order on personal hygiene was declared unlawful;
- The words “underpants” and “panties” must be struck out of prison dress rules and must be replaced with “gender appropriate underwear”. September must get female underwear, or be allowed to wear female underwear;
- Not allowing her to wear female underwear, long hair, jewellery, and refusing to use the female pronoun is discriminatory and unconstitutional;
- Until such time as she gets reassignment, the department must take September to either a single cell in middle prison and allow her to express her identity. Officials must also give back her confiscated jewellery and cosmetics and must address her by the female pronoun as well as direct all officials to do so;
- The department may transfer her to a single cell in a female prison, she must be allowed to express herself without her jewellery being confiscated, be allowed to wear long hair, be addressed as a woman and officials must be directed to do the same;
- This decision must be made in two months.
There was no order as to costs.
Speaking outside the court, an elated Greyson Vanguard Thela who is a legal and education advocacy officer at Gender Dynamix Pronouns, described the judgment as a milestone, saying the ripple effect would be felt all through society, including schools.