Transgender Prisoners Challenge Prison Authorities

Correctional Services has developed a standard operating procedure for transgender prisoners, but how well is it implemented?

Lawyers for Human Rights is representing a prisoner with the initials NM, a transgender woman serving a long-term sentence in Johannesburg Correctional Centre, who has taken the Department of Correctional Services to court.

For over five years, NM has been requesting gender-affirming healthcare, such as hormone treatment, recommended by Department of Correctional Services (DCS) psychiatrists. She has now approached the Gauteng High Court and the Equality Court to get an order directing the prison authorities to provide this as primary health care.

Her situation is similar to that of Jade September, a transgender woman imprisoned in the male section of Pollsmoor, who won her 2019 case in the Equality Court against the Minister of Correctional Services and others.

The Equality Court ruled that not allowing September to express her gender identity was unfair discrimination.

Standard operating procedures

The judge gave correctional services several options for reasonably accommodating September within two months and ordered DCS to introduce transgender sensitivity training for all employees within a year.

This included putting standard operating procedures (SOPs) in place for LGBT+ prisoners.

The SOP outlines how prisoners should be admitted, including an assessment of the safety risk they may face, which needs to be completed in the first six hours.

The SOP explains how searches and body cavity searches are to be conducted respectfully on LGBT+ prisoners. It also states that transgender men and transgender women should be detained or transported only with other transgender men or transgender women respectively.

The document also describes how LGBT+ prisoners should be communicated with. For instance, staff are strongly encouraged not to assume someone’s gender identity and to respect it once clear.

Alleged problems with implementation

Sanja Bornman, an independent gender law and policy specialist who represented September at the time of the case for LHR, says that the way prisoners were treated improved significantly after the court order. But the effects were not far-reaching or long-term.

“Over time, it became clear that officials held the mistaken belief that the order only applied to Ms September, and not all transgender inmates,” Bornman says. “Even the improved treatment of Ms September was not fully sustained.”

Bornman notes that legal interventions on behalf of transgender prisoners were needed several times after the judgment. For instance, LHR had to write to the correctional service facility repeatedly to remind officials to uphold the order and to extend accommodations to all transgender prisoners.

Belinda Qaqamba Makinana, legal and health programmes manager at Gender Dynamix, which acted as a friend of the court in the September case, says that the harassment frequently comes from DCS staff not other prisoners.

“We know that besides these two cases, there are many other transgender women in various prisons in South Africa who still face violence,” says Makinana.

Gender Dynamix was involved in the process of developing the SOP. Makinana said the SOP is often not implemented as it should be.

“I think definitely there needs to be more sensitisation work within prisons to be a safer space, and South Africa must perhaps take a bolder step in terms of the ways in which they want to accommodate transgender people.”

DCS spokesperson Singabakho Nxumalo confirmed that it is a disciplinary offence for a prison official to discriminate against a prisoner on the basis of their gender or sexuality, or to display disrespect.

“DCS continues to sensitise its officials around protecting and securing human rights of lesbian, gay, bisexual, transgender and intersex inmates,” he said.

A report last year by the Commission for Gender Equality states that while SOP around LGBTQIA+ prisoners is in place and was developed with care, its implementation remains concerning.

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