A transgender woman is taking the department of correctional services (DCS) to court, claiming she has been misgendered, bullied and denied access to gender-affirming health care while incarcerated at the Johannesburg Correctional Centre.
Lawyers for Human Rights (LHR) confirmed they will represent Nthabiseng Mokoena (“Ms Mokoena”) on Friday at the Johannesburg high court, sitting as the equality court.
The case challenges what LHR describes as the discriminatory and degrading treatment Mokoena has endured while in custody.
“The application is brought against the department of correctional services (DCS), the minister and other officials, on the basis that their conduct violated her constitutional rights to dignity, equality and freedom from unfair discrimination,” said LHR.
According to LHR, Mokoena alleges the department has entrenched systemic discrimination against transgender inmates by refusing to recognise their gender identity and denying basic gender-affirming rights.
“The violations include refusal to use her chosen name and pronouns, denial of her gender expression (clothing, cosmetics, toiletries), verbal harassment and bullying, and denial of gender-affirming health care,” said LHR.
“Transgender” refers to a person whose gender identity differs from the sex assigned at birth.
The legal team is seeking a court order compelling the department to:
- provide gender-affirming health care;
- assist with legally changing Mokoena’s name and gender marker; and
- ensure she is housed either in a single cell or with other inmates who share her gender identity, in line with the department's standard operating procedures.
“The transphobia within DCS senior management is undeniable. There’s a clear difference in how heterosexual inmates are treated compared to members of the LGBTQI+ community,” said Mokoena.
“The LGBTQI+ community is often treated as less than human. When we are hurt or attacked, no-one speaks up or does anything to help. Those who harm the LGBTQ+ community are never held responsible. What is worse, when we try to defend ourselves or speak out about the unfair treatment, we are the ones who get punished,” said Mokoena.
Mokoena has been in jail since 2013 and is being held in a section for people with special needs.
She said she started exploring her sexual identity at 17, wearing women’s clothing and struggling with seeing herself as a boy in the mirror. She left school and became involved with the wrong crowd, leading to her arrest on charges including murder and robbery.
Before her arrest, she had planned to take steps to affirm her gender identity legally, including changing her gender marker on her identity document.
In 2019 the equality court ruled that Jade September, a transgender woman convicted of murder and theft, could express her gender identity while incarcerated in an all-male prison. The court allowed her to wear female clothing and underwear, keep her hair long, wear makeup, and be addressed with female pronouns.
It also ordered the department to introduce transgender sensitivity training for all employees, new and current.
LHR emphasised that Mokoena’s case was critical for advancing the rights of transgender individuals, particularly those in vulnerable positions within the correctional system.
“This case is of crucial importance in setting standards for how transgender inmates are treated while incarcerated.”
TimesLIVE
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