The Equality Court has ruled that a woman transgender inmate may express her gender identity while incarcerated in an all-male prison. The court ruled, on 23 September, that the inmate is allowed to wear her hair long; wear make-up; wear female clothing and be addressed by officials using female pronouns.
Jade September is a transgender woman who was convicted of murder and theft in 2013 by the Cape Town Regional Court. She was sentenced to 15 years.
“Transgender” refers to a person whose gender identity differs from their sex assigned at birth.
At the time of her incarceration, September’s Identity Document (ID) indicated that she was male. She has been serving her sentence in all-male prisons.
September was first imprisoned at Pollsmoor. Then she was transferred to Helderstroom Correctional Centre. She was allowed to express her gender identity by wearing braids and being addressed as a woman.
But when she was temporarily transferred to Brandvlei Correctional Centre her make-up and female underwear were confiscated.
When she returned to Helderstroom she had an altercation with the head of the prison. According to September when she informed him that she intended to transition he resisted, saying that he “would not have” her “looking like a woman” because she is a man.
September alleged that after this altercation she was segregated from other inmates and placed in solitary confinement for a period of 17 days. She was forced to cut her hair and sign a warning stating that if she committed anymore infractions (such as wearing make-up) she would renounce her Group A status. This status is conferred to prisoners who are considered to have good behaviour.
September was later transferred to Malmesbury Correctional Centre.
September lodged an application in the Equality Court (Western Cape Division) against the head of Helderstroom, the Minister of Correctional Services, the Commissioner of Correctional Services and the head of Malmesbury Correctional Centre.
September argued that the refusal to enable her to express her gender identity amounted to unfair discrimination under the Constitution, the Equality Act and international law.
She argued that when she was placed in solitary confinement (segregation) as punishment for expressing her gender identity this amounted to “harassment” in terms of the Equality Act. Harassment refers to unwanted conduct which is persistent and humiliates and demeans someone and is intended to induce submission based on their gender or other grounds.
September sought an order enabling her to express her gender identity while incarcerated in an all-male prison. This would allow her to wear make-up, wear female clothing, wear her hair long and in feminine styles and be addressed by female pronouns.
She also sought an order declaring certain standing operating procedures within prisons unconstitutional to the extent that they prohibit transgender inmates from expressing their gender identity in prisons.
The Respondents argued that September’s ID identifies her as male. They argued that she was prosecuted and incarcerated as male and that until she undergoes gender reassignment surgery she must be treated and regarded as a male inmate. They also argued that she was placed in segregation for her own safety as it is unsafe for September to express feminine characteristics in a male prison with dangerous criminals. Lastly, they contend that the head of Helderstroom was entitled to discipline her because she was belligerent and used abusive language towards him. Therefore, they argue that there was no discrimination or harassment.
Judge Chantel Fortuin began her 65-page judgment with a quote by Russian writer Fyodor Dostoyevsky: “A society should be judged not by how it treats its outstanding citizens, but by how it treats its criminals.”
She addressed four main issues in her judgment:
First whether the Constitution, the Equality Act and international law prohibit discrimination based on gender identity.
Second, whether the respondents had to ensure reasonable accommodation for September’s gender identity.
Third, whether the respondents had unfairly discriminated against September.
Lastly, what would be appropriate relief, if any.
Does the Constitution, the Equality Act and international law prohibit discrimination based on one’s gender identity?
Fortuin found that several constitutional rights prohibit discrimination based on gender identity. First, she found that denying someone the right to express their gender identity in prison would amount to cruel, degrading or inhuman treatment. This much was evident from the mental suffering which September had endured.
Second, wearing certain clothes; applying make-up; and fashioning one’s hair in a particular way impacts a person’s right to freedom of expression, Fortuin wrote. Also, the impact on the right to freedom of expression is particularly severe because it also undermines September’s rights to equality and dignity.
Third, the discrimination against September in this case would offend her right to dignity. If the state targets persons for conduct which is part of their experience of being human, the state violates the person’s right to dignity. Pronouncing on the Constitution’s stance on gender identity Fortuin stated: “Respect for human dignity thus requires the recognition of and respect for the unique identity and expression of each person.”
Fortuin concluded that although the term “transgender” does not appear as a listed ground of discrimination in the Constitution or the Equality Act, discrimination on the basis of gender identity nevertheless merited protection.
Reasonable Accommodation and International Law
Fortuin also stressed the importance of reasonable accommodation. In this case, the respondents had to ensure reasonable accommodation of September’s gender identity, but does not undermine her safety or the safety of detention facilities.
Fortuin found that even though international law was not binding on the court it was nevertheless informative and instructive. Also, it functioned as an interpretative aid for the Constitution’s Bill of Rights.
Using international examples, Fortuin said there were a number of options available to the respondents to address the needs of transgender inmates:
- Adopting a policy which allows transgender and gender diverse inmates access to clothing and other items designated for female inmates only;
- Deferring to a panel of doctors and therapists to make the decision, not just correctional services officials;
- Giving transgender inmates the right to access clothing and make-up appropriate for their self-identified gender;
- Establishing separate detention facilities exclusively for transgender inmates.
The court said the respondents were free to pursue any of these or other approaches so long as they are constitutionally compliant and treat transgender inmates with the necessary dignity and respect.
Prisoner’s punishment was not discrimination
In considering this question, the court separated two incidents of discrimination. First, the segregation of September from other inmates. Second, the refusal to allow September to express her gender identity by wearing make-up and so on.
The court found that the respondents were entitled to discipline September for being disrespectful. Furthermore, enabling her to express her gender identity in unsafe circumstances would put her at risk of being assaulted. Therefore, her segregation did not constitute discrimination or harassment. This would have happened to any prisoner, Fortuin said, ruling against September on this point.
But in respect of September’s gender expression, the court found that the respondents’ neutral application of the rules is discriminatory because it does not accommodate transgender inmates. If there is a threat to safety, the respondents have the means available to ensure the applicant’s safety rather than infringing her expression of her gender identity. The respondents have an obligation in terms of the Equality Act to make reasonable accommodation for diversity, Fortuin said.
The court made the following order:
- It declared that the respondents’ refusal to allow September to express her gender identity amounted to unfair discrimination. This relates specifically to confiscating her female underwear and make-up; forcing her to cut her hair and refusing to address her as a woman.
- The court declared the Standing Operating Procedure which prohibits transgender inmates from wearing gender appropriate clothing, unconstitutional.
- The respondents must take steps to reasonably accommodate September, either by placing her in a single cell at Malmesbury and enabling her to express gender identity, or by transferring her to a female correctional centre.
- The respondents must introduce transgender sensitivity training for all Department of Correctional Services Employees as part of training for new and current employees within 12 months of this order.
No cost order was made.