Cape Town - Jade September is a transgender prisoner, being held at the Helderstroom Maximum Correctional Centre in Caledon, who turned to the Equality Court to compel the departments of Justice and Correctional Services to allow her to dress as a woman, even though she is in a male prison.
September, who was convicted of murder and sentenced to 15 years, submitted in her court papers that her harassment comes from prison officials, who force her to dress and behave like a man.
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.
Lawyers for Human Rights have been in the Western Cape High Court, sitting as the Equality Court, arguing that the prison system has singled her out, harassed and unfairly discriminated against her for expressing her gender identity, contrary to the Promotion of Equality and Unfair Discrimination Act 4 of 2000 (the Act).
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.
September said she was forced to give-up wearing a small amount of make-up in jail, to wear her hair long and braided or to wear female underwear and accessories.
She is incarcerated in the men’s prison, alongside other male inmates, but she said this was no problem, as the male prisoners treat her mostly with respect or indifference.
Her problem was with the correctional service officials.
Prior to the proceedings taking place, members of the Sistaaz’Hood group of transgender sex workers stood at the steps of the high court with posters and placards calling for equality.
Others went as far as writing “justice for Jade” on their posters. The group wore purple T-shirts.
One of the members, Goolam Petersen, said: “Most of us know Jade and are here to support her in getting her dignity back. Once you strike Jade, you strike every trans in South Africa because trans exists, but some people are too blind to see.
Should the Equality Court rule in favour of September to express her gender identity as a female in a male facility, then the Standing Order in prison should be sent back to the minister for review.
State lawyer advocate Karrishi Pillay, previously argued in court that in terms of the legal framework, September was male.
“The applicant’s treatment, while incarcerated, has been consistent with that of the males: there has been no unfair discrimination.”
Pillay argued that transgender requirements placed September in a high risk category in Helderstroom prison, which has a male population of about 770 inmates, most serving multiple sentences for violent crimes.
“Correctional Centre culture is that male inmates take physical possession or ownership of other male prisoners who display feminine characteristics.
“The applicant’s request for communal access to other male prisoners while expressing herself as female would expose her to sexual violence because male rape is an undeniable reality of incarceration,” said Pillay.
State counsel asked the court to dismiss September’s application.
September’s legal counsel, advocate Nicole Lewis argued one did not need to undergo surgical transition to be defined as transgender. It had to do with gender identification.
Judgement in the matter has been reserved, but that is not stopping September from wanting the matter to go to the Constitutional Court if necessary.
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.
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.
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 had 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 previously declined to comment on the case, saying the matter is sub judice.