Should Prisons Provide Gender-Affirming Healthcare?

A case is before the Equality Court on whether transgender prisoners are entitled to gender-affirming healthcare.

• A transgender prisoner serving a life sentence has gone to the Equality Court to demand that the authorities provide hormone replacement therapy.
• Medical experts say hormone replacement therapy is a medical necessity for her, not a “cosmetic” treatment.
• The prison authorities argue that such treatment is specialised care beyond its primary healthcare obligations.

Should the healthcare which prisoners are entitled to include gender-affirming care? This is at the heart of a case before the Equality Court.

The case concerns allegations of unfair discrimination against a transgender prisoner at “Sun City” prison in Johannesburg. She argues that the prison authorities have an obligation to provide gender-affirming care such as hormone replacement therapy. She says prison officials routinely misgender her and prevent her from using makeup or wearing female clothing.

This is the second case about the rights of transgender prisoners brought to the Equality Court. GroundUp previously covered the September v Subramoney case, which saw the Department of Justice and Correctional Services develop a Standard Operating Procedure (SOP) to address the distinct needs of LGBTQI+ prisoners, protecting their constitutional rights to dignity and equality.

The prisoner

NM, a transgender woman, currently in the Johannesburg Correctional Centre was convicted in 2010 and sentenced to life imprisonment. This year, she will be eligible to apply for parole for the first time.

NM was largely raised by her maternal grandparents in Honeydew. Throughout her childhood she was treated as a boy. At a young age she began to explore her gender identity by wearing make-up and girls’ clothing. She found it difficult to look at herself in the mirror because there was a discrepancy between her appearance and who she felt she was inside. Her family found this difficult to understand and she encountered a lot of abuse. She left school at the age of 17 and fell in with the wrong crowd, which led her into “a life of crime”, as she puts it.

At the time NM was convicted, her ID still reflected her birth name and sex assigned at birth. Prior to being incarcerated, she tried to initiate the process to alter her gender marker on her identity documents. The Act that provides for the alteration of a person’s gender marker requires surgical or medical treatment accompanied by a report by a medical practitioner.

When NM was incarcerated, she informed the prison that she identifies as a woman and that her chosen name differs from her birth name.

Prison life

NM was initially housed in the Medium A section of the prison. During this period, she was allowed to express her gender identity by braiding her hair and wearing make-up. She was also allowed to dress up during drama performances. She was housed with another transgender prisoner, which made her feel safe and understood.

She alleges that when she was transferred to the Medium C section of the prison, she experienced victimisation and harassment. She alleges that despite clear communication that she identifies as a woman, the officials misgendered her. She was also denied family visits because she was told that she may not wear feminine attire to receive visitors.

She was housed in a single cell with a gay man, which made both of them feel uncomfortable. She alleges that her cosmetics and make-up were routinely denied or confiscated. She was subjected to verbal abuse by officials and told that “transgender people are evil” or that she is “pretending to be someone she is not”.

Lawyers for Human Rights, who are NM’s legal representatives, communicated her grievances to the prison to no avail. The prison said that NM’s allegations were being investigated but neither LHR nor NM have been informed of the outcome of this investigation.

NM has initiated a lawsuit in the Equality Court against the prison, the National Commissioner for Correctional Services, the Minister of Correctional Services and the Gauteng MEC for Health.

NM argues that the conduct of the prison constitutes unfair discrimination on the basis of her gender identity. She also argues that the undignified treatment she has been subjected to constitutes “harassment” in terms of the Equality Act. (The Act defines “harassment” as unwanted conduct which is persistent and humiliates a person on account of their gender.)

Gender-affirming healthcare

In order to alleviate her gender dysphoria and to transition medically, NM argues that she is entitled to gender-affirming care in the form of hormone replacement therapy.

Gender dysphoria is when a person experiences severe distress for at least six months or longer due to a misalignment between their sex assigned at birth and their expressed gender.

At least four medical experts – two clinical psychologists, one general practitioner and one psychiatrist – have examined NM and concluded that her desire for treatment is not merely cosmetic but a medical necessity.

Because the Constitution requires prisoners to be detained with their dignity intact, NM argues that gender-affirming care is part of the prison’s constitutional obligation to provide her with primary healthcare.

She argues that the prison is not complying with its own standard operating procedure, which requires the rights of transgender prisoners to be respected.

International law, in particular the Yogyakarta Principles, also requires that LGBTQI+ prisoners be treated with respect and dignity.

Relief sought

NM wants the court to declare that preventing her from expressing her gender identity is unfair discrimination, and that prohibiting her from having family visits constitutes harassment. She wants the court to order the prison to address her as a woman through the use of the female pronoun, allow her to express her gender identity by wearing cosmetics, make-up and female prison clothing, and provide her with hormone replacement therapy.

Lastly, she wants to be housed in a single cell or with other prisoners who have the same gender identity as her.

Department’s arguments

The respondents deny that either the alleged discrimination or harassment took place. Since the September judgment, the department has implemented its standard operating procedures and treats all LGBTQI+ prisoners with dignity and respect, as required by the Constitution and international law, they say.

The respondents argue that it is not practical to house NM in a single cell given resource constraints and overcrowding. Because NM is the only transgender prisoner, she must be housed with the only other LGBTQI+ inmate, who is a gay man, they argue.

The respondents reject the idea that gender-affirming care is part of a prison’s obligation to provide primary healthcare. They argue that such care is specialised treatment and that because there are only six centres in the country run by the state which provide gender affirming care, she must seek assistance from the Department of Health.

Lastly, they argue that if NM wants gender-affirming care she must undergo at least six months of evaluation and observation by medical practitioners to qualify.

Friends of the court

Access Chapter 2, a prominent LGBTQI+ rights organisation, has been admitted as a friend of the court, arguing that hormone replacement therapy can be made accessible to prisoners including NM.

The Judicial Inspectorate for Correctional Services (JICS) has also been admitted as a friend of the court and will highlight how if implemented, the standard operating procedure has the potential to ensure dignified and equal treatment for LGBTQI+ prisoners such as NM.

JICS agrees that prisons have an obligation to provide gender-affirming care, including hormone replacement therapy because of the special circumstances of transgender prisoners and their heightened vulnerability.

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