Navigating the complexities of (trans) gender equality rights within the parameters of reasonable accommodation and security tensions in South African prisons: The judgement of September v Subramoney

Abstract

Within the heterogenous global prison population of about 11.7 million, transgender prisoners have unique vulnerabilities and are exposed to substantial risks and harm. Their situation has been viewed as a ‘‘double punishment’’ by encompassing the system lack of gender recognition and exposure to traumatic experiences of detention often tantamount to torture. In Africa, sexual minority rights remain a contentious issue, and there is little documented about the situation of incarcerated transgender people.

South Africa is one of the most progressive African countries in terms of equality legislation and advancing the rights of sexual and gender minorities. A legal realist review was conducted of the 2019 South African Equality Court judgement of September v Subramoney, based on case decisions and by scrutinizing the international and regional human rights protections and rights assurance mechanisms which encompass the fundamental rights of detained transgender individuals. These are not limited to protection from custodial violence, prohibition of torture and discrimination but include conditions of accommodation, right to express their gender identity and access to gender affirming healthcare. The subsequent legal realist account critiques the impact of this judgement based on extant published literature (empirical, humanitarian, and UN Committee reporting) and jurisprudence in other jurisdictions cognisant of increasing strategic litigation in the field of transgender rights. The implications of this ground-breaking judgement are considered, with a particular lens focusing on the rights of trans-prisoners (particularly trans-women as most vulnerable) to equality, but also dignity, freedom of expression, dignified detention, and the prohibition of inhumane treatment or punishment. These rights are positioned within the boundaries of safe and reasonable accommodation, ability to gender express and prison system capacity to deal with security tensions in high risk cis-normative detention environments.