Lawyers representing transgender prisoner Jade September say they will head to the Constitutional Court should her bid to dress and appear like a woman fall short in the Western Cape High Court.
September has been serving a 15-year sentence at Helderstroom Prison since 2013, for the murder of Graham Flax.
September, a transgender sex worker at the time, said Flax had been a regular client and refused to pay for services, leading to an altercation and eventually Flax’s death.
September is taking on the Department of Correctional Services in a bid to allow her to dress like a woman, wear her hair the way she chooses and wear make-up and female underwear.
The case has attracted international media attention.
Lawyers for Human Rights attorney Sanja Bornman says while there are other cases around the world of this nature, September’s is the first of its kind in South Africa.
The Department of Correctional Services, in its filing affidavit in court, said at present the system allows only for men and women to dress in a certain way.
The court heard that September is being kept in “segregation” for her refusal to stop wearing make-up.
She accused officials at Helderstroom of “rude” and “aggressive” behaviour.
Lawyers for Correctional Services also questioned the authority of the court to rule saying it should refer the case back to the department for review.
It is also argued that September’s being placed in “segregation” is purely administrative.
The department argues further that “rude” and “aggressive” behaviour against September cannot be seen as unfair discrimination.
Not good enough, says Bornman, who argues the department’s refusal to allow September to be her “true self” flies in the face of her constitutional rights to freely express who she is.
“We no longer live in a world of just men and women. The system needs to accommodate trans people so that there is justice for everyone.” Bornman says while September is “okay” now, she is anxious about the case and has suffered abuse at the hands of prison officials in the past.
Constitutional law expert Professor Pierre de Vos said September has a case to argue.
“While the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act do not explicitly prohibit unfair discrimination based on gender identity, they do allow courts to find there is discrimination on grounds that are similar to those listed. This is such a case.”
De Vos said where discrimination occurs on the “analogous” ground of gender identity, transgender individuals are a vulnerable group and the impact of the discrimination on September will be severe.
“While our courts have not ruled on this before, I would argue that the department’s reasons for the discrimination are not compelling and that there is therefore unfair discrimination in this case,” he said.
September’s bid is supported by Gender Dynamics, Triangle Projects, Iranti Org, Sistazhood, transgender sexworkers who form part of SWEAT and private individuals.
Department of Correctional Services spokesperson Simphiwe Xako declined to comment on the case, saying the matter is sub judice.