Gender activists hail landmark ruling for transgender prisoners

Transgender murder convict Jade September might see herself transferred to a female prison after the Equality Court ordered that she was unfairly discriminated against by the correctional services department.

September, a transgender woman sex worker, was sentenced to 15 years in prison by the Cape Town Regional Court in 2013 after murdering her client and stealing a car.

But September's own fight for justice started after prison officials refused to allow her to express her gender in prison, which included wearing women's underwear, make-up, having her hair in feminine styles and being referred to by her preferred pronoun.

On Monday, high court judge Chantel Fortuin ordered that September be allowed to express her gender and that all transgender prisoners be issued female underwear "and/or be allowed to wear such".

September will be allowed to wear make-up and jewellery, wear her hair in styles that affirm her gender and she will be addressed by her female pronoun.

Fortuin also ordered that standing orders on personal hygiene, which are discriminatory against transgender females, be scrapped.

Making no findings on South Africa's binary gender system that recognises only male and female as genders, Fortuin ordered that the correctional services department keep September in a single cell in a male prison until such time as she has undergone gender reassignment treatment. Alternatively, she should be transferred to a single cell in a female prison.

The department of correctional services was also ordered to introduce "transgender sensitivity training" for all correctional services employees.

According to Fortuin, September was being denied her constitutional rights. "She is prevented from expressing her identity. Conduct which is part of her experience of being human is being condemned. She is being denied the personal freedom to develop and express her true nature, therefore her dignity is being impacted on severely by the conduct of the respondents," said Fortuin in her judgment, which was delivered just after noon on Monday.

September was kept in detention under "segregation" for 17 days as punishment while she was incarcerated at Helderstroom prison "for asserting her gender identity in response to authorities' disregard thereof". Fortuin ordered that all the infractions she incurred as a result of her expressing her gender identity in prison be removed from her record.

The large group of mostly transgender women who filled the courtroom cheered after the judgment was read out. Among them were members of the Cape Town transgender sex worker's fraternity SistaazHood and transgender rights group Gender DynamiX.

SistaazHood founder Netta Marcus, who knew September while she was still a sex worker, said they were pleased with the court's decision.

"We've won with the correctional services department. Now if the police could treat us a little better, that would be nice," said Marcus.

"Most of the women have been rejected by their families. If the families could stop discriminating against them, that would overflow into broader acceptance from society. This will have a positive effect on the way society treats us. It has become better for us - the constitution is great, but society hasn't treated us well."

Speaking outside the high court following the judgment, Gender DynamiX director Liberty Matthyse told TimesLIVE that the court order was "the first step in many steps to come in South Africa's troublesome relationship with gender".

"There is a great gap in our systems that allows trans- [and] gender-diverse persons to be overlooked, to not get access to equality and dignity. We are committed to ensuring that we are full citizens in this country and that we are treated as equal citizens to any cisgender and heterosexual person," said Matthyse.

"We have a very troublesome relationship with gender as a country. It doesn't necessarily only stem towards trans- and gender-diverse persons; it's also about women in general - that patriarchy, toxic masculinity results in a binary system that oppresses so many of us, the majority of us in the country."

Gender DynamiX was attached to the case as a friend of the court.

Matthyse said the judgment was a way of unlocking a bigger discussion about living "gender freely" in South Africa - and in the future to have policy responses to meet the needs of people who fall outside of the gender-binary "conceptualisation".

Asked whether a "third option" should be established in the correctional services sector for transgender detainees, Matthyse said that this was not necessarily the answer.

"At the core, the issue revolves around self-identification and being able to express a gender freely. It revolves around safety and security. So I don't think it's about having a third facility that caters to trans- and gender-diverse persons.

"I think that when we are looking at how trans- and gender-diverse persons want to be detained, that should also inform what the correctional services sector can offer to promote dignity. But I don't think the answer would necessarily be a third option when it comes to being detained," said Matthyse.