A transgender prisoner serving a life sentence at Johannesburg’s “Sun City” Prison will turn to the Equality Court in a bid to receive gender-affirming care, in the form of hormone replacement therapy.

The prisoner, only identified as NM, said in an affidavit that she was assigned the male gender at birth, and although her identity document still reflects her birth name, she asked the court to hear her application under her chosen female name.

She is asking the court to declare that the prison authorities are unfairly discriminating against her in not allowing her to wear her female clothes in prison and for refusing her to use cosmetics.

NM also wants to be addressed as a female and for the officials to use the pronoun her/she in addressing her. She also wants assistance from the department in changing her gender marker, and she wants to be accommodated in a single cell or a cell with inmates of the same gender identity as herself.

She has been in jail since 2013, and she is held in a section of the prison for persons with special needs. According to NM, she has been subjected to harassment and discrimination by officials.

In painting her background, she said that at 17, she started exploring her sexual identity and started wearing women’s clothing. She also struggled to look in the mirror and saw a boy staring back at her.

She left school at the time and fell in with the wrong crowd, which eventually led to her arrest on charges that included murder and robbery.

NM said before her arrest, she wanted to take steps to affirm her gender identity as a woman, including changing her gender marker on her identity document.

Several medical experts have, meanwhile, examined her, and they have concluded that she needs to transition medically and that she should have access to gender-affirming care in the form of hormone replacement therapy.

NM said she was initially held in a section of the prison where she could express her gender identity, use make-up, and wear her hair long and in braids, without any objections from anyone. She was incarcerated with another transgender inmate, who understood her.

NM said she was later moved to another section, where she was harassed and victimised by both offenders and officials. She said they did not respect her identity, and this caused her a lot of distress.

“I find myself accommodated in a cell with a gay man. As a transgender person, this arrangement has been highly uncomfortable and distressing for me.”

She added that her situation should have been considered by the department when she was moved to another section of the prison.

She does not wear female clothing, as she has been issued with prison attire, although she can still wear female underwear, NM explained.

According to NM, the prison authorities are discriminating against her for refusing to allow her to express her identity, which she says is unconstitutional.

She said the department is not complying with its standing operating procedures, which require the rights of transgender prisoners to be respected.

The various respondents, which include the department and the head of the prison, deny that they are discriminating against NM or harassing her. Because of space constraints, they cannot house her in a single cell, and thus she must be housed with the only other LGBTQI+ inmate, they argued.

According to the department, they have standing operational procedures in place, and they have been treating these prisoners with dignity since the September judgment issued in 2019, dealing with similar issues.

The Equality Court hearing, in which NM is assisted by Lawyers for Human Rights, has meanwhile been set down for September 8 to 12.

zelda.venter@inl.co.za

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