South Africa: transgender inmate wins right to express her gender in male prison
Pretoria - In a huge victory for equality, transgender prisoner Jade September won the right to be express herself as a woman, although she is at present in a male prison. The Equality Court sitting in the Western Cape ordered that the Department of Correctional Services had to respect September’s wishes to be treated as a woman.
Judge Chantal Fortuin said the Department of Correctional Services failed in its duty to accommodate her reasonably. In a lengthy order handed down on Monday as part of her judgment, Judge Fortuin ordered the department to issue September and other transgender female prisoners with female underwear and to allow them to wear it.
The judge also declared the prison head’s refusal to allow September express her gender by wearing make-up and jewelry and not allowing her to wear her hair long and in feminine styles, unconstitutional.
She found that the prison authorities’ refusal to address September as a woman, was unlawful and trampled on her rights. She must in future be addressed as a woman.
Part of the order read that until such time as September had undergone gender reassignment treatment, the department and its officials must respect her constitutional rights.
These include that she remains in a single cell - either in a male or female prison and that she be allowed to express her gender identity safely and securely. In the alternative it was ordered that she be transferred to a single cell at a female prison.
Her female underwear, make-up and jewelry must be returned to her and she is allowed to wear it in future. This must be done within two months of this order.
The department was also ordered to introduce transgender sensitivity training for all its new employees and to run a course for current employees within 12 months of this order.
September earlier in court papers described herself as a woman locked in the body of a man. She said she is desperately unhappy that prison officials refused to let her act female in a male prison. She is at present serving a jail sentence at the Malmesbury Medium Correctional Centre.
September turned to court as she felt her rights were trampled upon as she was not recognised by the officials as a woman. Judge Fortuin said the respondents do not appear to be willing to take any reasonable steps to give effect to September’s constitutional rights.
“There are a number of simple measures available to the respondents to achieve the desired outcome without placing extra burdens on their resources or exposing the applicant or other inmates to an increased safety risk.”
The judge added that she is aware of the safety risks in prisons and therefore she made an order which would balance the rights of both parties.
“This case is primary about equality …dignity, freedom of expression, dignified detention and the prohibition of inhumane treatment or punishment,” she said.
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