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Trans Prisoners’ Rights to Gender Identity and Expression in September v Minister of DCS

As a trans and gender diverse focused human rights organisation, Gender DynamiX is painfully aware of how society continuously seeks to marginalise, exclude and violate the bodily and psychological integrity of trans and gender diverse persons. Discriminatory laws, policies, regulations, institutional structures and practices are key driving forces in facilitating and maintaining the levels of systemic violence, indignity and oppression we experience. With governmental departments and leadership slow at responding and in many cases lacking the necessary commitment, we highlight our continued struggle for socio-economic and politico-legal justice for trans and gender diverse persons in all spheres of society, including in all state facilities.

Together with our partners, the Legal Resources Centre, Lawyers for Human Rights and all trans-focused human rights organisations, Gender DynamiX continues the fight for dignity, equality and freedom for all trans and gender diverse persons, particularly our right to be free from discrimination and inhumane treatment on the basis of our gender identity and gender expression. As amicus curiae represented by Legal Resources Centre in the case of September v Minister of Correctional Services, to be heard on 26 November 2018, Gender DynamiX salutes Jade September for her courage in taking the Department of Correctional Services to task for denying her the space to express her gender identity and for preventing her from exercising her rights to dignity, equality and freedom of expression in detention facilities and prison.

As a transgender woman, she has been subjected to misgendering, harassment, verbal abuse and inhumane treatment in prison facilities. This is the result of the enforcement of rigid, discriminatory rules/practices regarding gender expression and a lack of awareness on the part of the Department of Correctional Services and its officials regarding gender diversity. These forms of violence perpetrated against trans and gender diverse persons must end. Just because one is imprisoned does not mean that one loses one’s right to be treated with dignity and one’s rights to bodily and psychological integrity. Trans and gender diverse persons have the right to dignified detention in facilities where they feel safe and can express their gender identity without fear of persecution. The Department of Correctional Services and every other government department have to transform their policies and practices to ensure that they are inclusive of the needs and lived realities of trans and gender diverse persons, and promote and protect the full realisation of their rights.

This case against the Department of Correctional Services comes after a Western Cape High Court judgement in 2017 (KOS v Minister of Home Affairs) that saw the Department of Home Affairs’ actions declared unlawful and inconsistent with the Constitution after it had coerced married couples involving a transgender spouse to divorce before allowing the trans spouse to change their legal gender marker. South Africa has a gender recognition law that allows you to change the gender marker on your identity document under certain (very restrictive) conditions. However, it is a fact that many trans and gender diverse persons across South Africa have been unable to access legal gender recognition because of legal and administrative injustice and lack of commitment and understanding on the part of the Department of Home Affairs and its officials. This has far-reaching consequences for every aspect of our lives, including access to employment, education, healthcare, social services, justice, gendered facilities and our safety in society. In the case of Jade September and many other incarcerated trans and gender diverse persons, the lack of access to legal gender recognition is the fault of government, yet government uses this lack of access to further discriminate against persons in state facilities by refusing their right to express their gender identity.

Gender DynamiX has been consistently arguing that South Africa’s gender recognition law, the Alteration of Sex Description and Sex Status Act, No. 49 of 2003 (Act 49) must be reformed in line with the Yogyakarta Principles and international best practice for changing gender markers in identity documents. This would entail removing the Act’s current highly exclusionary medical requirements and replacing it with a gender self-determination model that allows people to change their legal gender marker through self-declaring their gender identity in a simple and quick administrative procedure, with the option of leaving gender unspecified or blank, should an individual wish to do so. This will result in significantly more trans and gender diverse persons being able to obtain legal gender recognition, and will make provision for persons whose gender identity is nonbinary or fluid, or who do not wish to have a specific gender assigned for their own safety. It would also assist in creating more awareness in society about the diversity of gender identities and gender expressions that exist, and lay the foundation for more inclusionary policies and practices, including in state facilities like correctional centres.

Although Jade September’s case relates to an individual’s struggle to obtain gender recognition under a particular state department’s policy framework, the matter extends well beyond this by putting the spotlight on national government and its degree of commitment to effectively recognising, protecting and integrating trans and gender diverse persons and communities into society to live with dignity, equality and freedom.


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