Transgender Prisoner Wins Right to Hormone Therapy

The Gauteng High Court in Johannesburg sitting as an Equality Court has ruled that the state must provide hormonal therapy to a transgender prisoner.

• A transgender prisoner went to the Equality Court to force the Department of Correctional Services to provide her with hormonal treatment.
• The department had refused, calling it “cosmetic medication”.
• Judge Denise Fisher ruled that withholding gender affirming health care amounted to unfair discrimination and that the department must comply with its own standard operating procedures for transgender prisoners.

A transgender prisoner, serving life at Johannesburg Correction Centre, has won the legal right for state provided hormonal therapy. The Equality Court ruled that “adequate health care”, which must be provided to all prisoners in terms of law, now includes this treatment.

Judge Denise Fisher wrote that transgender prisoners are entitled to access a greater standard of health care for their condition – gender dysphoria – than that to which other transgender persons outside of a prison environment are entitled.

Judge Fisher also ruled that the prisoner, Nthabiseng Mokoena, was entitled to express her gender identity, including the use of pronouns “she/her” and to be housed in a single cell or in a cell with other transgender prisoners.

Mokoena was born a biological male but began expressing female identity at age seven. She was sentenced to life imprisonment for murder and robbery committed in 2010.

In her application, brought under the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), she described how she was ostracised by her family and community, dropped out of school, mixed with the “fringes of life”, and fell into a life of crime.

She complained that while incarcerated her rights had been violated because she had been denied hormonal therapy, and she had been subjected to unfair discrimination and harassment.

She further complained that she was not allowed to wear “feminising clothing”, to use her chosen pronouns, and was not being accommodated in a single cell.

In her ruling handed down on Monday, Judge Fisher said: “The profound misery and distress that is experienced by transgender persons when their ability to exist in a state of psychological and emotional integration is denied to them, is accepted by all parties in these proceedings and the examination of rights proceeds in this context.”

Mokoena asked the court to order the Department of Correctional Services (DCS) to comply with and enforce its own standard operating procedures (SOPs) for transgender prisoners, and provide medical treatment for her gender dysphoria at state expense. Judge Fisher said the medical relief she sought was relatively modest, only confined to the hormonal therapy, prescribed by doctors in 2021 after she was diagnosed. But the department refused.

The judge said while Mokoena intended to eventually have breast augmentation and genital surgery, this was not the focus of the application because “she accepts that transitioning requires multidisciplinary interventions at appropriate stages”.

Initially Mokoena was housed in Medium A at the prison, where she was allowed to keep her hair long and wear women’s clothing. But she was then transferred to Medium B, kept in a segregated section reserved for high-risk prisoners such as police officers. She was not given a single cell.

After her gender dysphoria diagnosis and the Department of Correctional Services refusing to provide hormone therapy, claiming it was “cosmetic medication”, she took to self medicating with oral contraceptives.

In April 2023, she complained to the Judicial Inspectorate for Correctional Services (JICS).

The Department of Correctional Services, in response to a query from JICS, said she could not be placed in a single cell because of overcrowding. It said it could place her with two gay men.

Opposing the application, the Department of Correctional Services said it had adopted special standard operating procedures relating to the rights of transgender prisoners. In terms of the policy, officials were required to respect, recognise and affirm diverse gender identities and expressions, use appropriate and inclusive language, avoid derogatory and hurtful words, not make assumptions about a prisoner’s gender identity, and to ask for and use a prisoner’s preferred pronouns.

The department agreed that prisoners should be accommodated in cells appropriate to their gender identity where feasible and safe.

The department said it had dealt with Mokoena’s complaints, conducted an investigation, and taken steps to remedy the infractions found.

But the department said it was only obliged to provide primary health care at state expense and that gender affirming health care was obtained at a secondary and tertiary level. So it must be sourced at Makoena’s expense.

“The department says her condition relates to mental illnesses,” Judge Fisher said. “This characterisation suggests a lack of understanding of what it entails and how it is treated. It however, concedes to an understanding, at least, that the treatment involves important psychological considerations which must be sensitively approached. It now accepts in these proceedings that the treatment is not cosmetic in nature.”

She said JICS had noted that in spite of the adoption of the standard operating procedures it had observed that the rights of LGBT+ prisoners were frequently violated in practice.

“[P]roperly implemented, the [standard operating procedures] have the potential to ensure dignified equal treatment of such prisoners. It has documented successful implementation at facilities at Durban Medium B, where a dedicated unit has fostered a respectful and affirming environment.”

Judge Fisher said Mokoena’s gender dysphoria was not disputed and withholding treatment worsened her distress.

“To my mind, the applicant has established the discrimination and harassment contended for.

“The limitations placed on her by the [department], are, to my mind, unreasonable and obstructive. They evidence a cynical disregard for her rights.

“I accept that the [department] is able to create an environment which is conducive to fairness by simply observing and enforcing the [standard operating procedures].”

Judge Fisher said Makoena had established that because of her transgender status, she had been subjected to systematic disadvantage undermining her rights and freedoms.

Withholding gender affirming health care amounted to unfair discrimination, the judge said.

“Thus, I find that adequate health care as envisaged under the Constitution and the Correctional Services Act includes the providing of hormone replacement therapy and all the supportive and associated treatment that this therapy entails and that the [department] is obliged forthwith to take all steps to accommodate access to such treatment at the cost of the state,” the judge ruled.

She ordered the Department of Correctional Services to allow Makoena to wear clothing that expressed her gender identity at all times in the prison, to ensure she is addressed as “she/her”, to accommodate her in a single cell, or with prisoners of the same gender identity, and to provide hormonal treatment on prescription.

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