Transgender prison inmate fights for right to express female gender identity

2018-11-27 20:46
(File, AP)

(File, AP)

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Judgment has been reserved in the compelling Western Cape High Court case between transgender woman Jade September and the Department of Correctional Services and others on Tuesday.

September is seeking relief from the court for the violation of her fundamental constitutional rights to equality and human dignity, including an order that the respondents permit her to express her gender, and that she be respected in her gender identity while incarcerated.

Her legal representatives argued that the prison system has singled her out, harassed and unfairly discriminated against her for expressing her legal identity – in contravention of the Promotion of Equality and Unfair Discrimination Act.

"If a positive judgment is handed down, Jade will be able to express gender identity freely [and] alleviate mental stress," Lawyers for Human Rights (LHR) lawyer Sanja Bornman told News24.

"This judgment will set a precedent for the manner in which the prison system treats transgender inmates. This has broader implications as Jade is not the only transgender inmate by any means."

LHR claims that September has been denied the right to express her gender through her hairstyle, dress and use of small amounts of makeup while incarcerated. 

Allegations of verbal abuse from prison officials

She was sentenced to 15 years' imprisonment for murder and because she did not have the opportunity to change the gender marker on her ID, she was placed in a male corrections facility.

September has also allegedly been the subject of verbal abuse by prison officials and was once placed in segregated confinement after trying to express her gender identity.

One of the respondents explained the treatment in an answering affidavit: "Applicant was identified as a male on the warrant, which was confirmed by [the] identity document.

"As a male inmate, on admission applicant received and continues to receive toiletries and clothing according to his gender.

"Applicant is allowed to wear his hair in any style consistent with the health, hygiene, security and safety measures within Helderstroom male correctional facility."

The departments of justice and correctional services claim that they force September to conform to a male identity for her own safety.

'Unlawful discrimination not part of sentence'

With regard to the issue of separate confinement, the respondents argued that September would be more vulnerable to assault if she were detained in a communal cell.

Placing her in a single cell would ensure that she would not become a victim of sexual assault, the respondents claim.

She was housed in a single cell and ate her meals there. When she exercised or attended medical facilities, she was under direct supervision for her safety.

Bornman pointed out that unlawful discrimination by state employees is not part of anyone's prison sentence and that no one should be punished by the state for their gender identity.

"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," she 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.

September 'likely to stand out even more' at women's prison

Placing September in a woman's prison may not be the solution to the issue, Bornman said.

"The first questions are always, 'why is she not simply transferred to a women's prison?', and 'is it not dangerous for her to look like a woman in a men's facility?'" she said.

"The truth is, because Ms September has never had access to gender-affirming healthcare, she is likely to stand out even more, and be at greater risk of victimisation and violence in a woman's prison."

September has stated in her papers that the treatment she has received from prison officials has caused her "to feel extremely demeaned and deprived of my identity".

"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. This is needless to say a vitally important aspect of my identity. It goes to the core and is the essence of who I consider myself to be as a human being."

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