September v Subramoney NO and Others (EC10/2016) [2019] ZAEQC 4; [2019] 4 All SA 927 (WCC) (23 September 2019)

September v Subramoney NO and Others (EC10/2016) [2019] ZAEQC 4; [2019] 4 All SA 927 (WCC) (23 September 2019)

The court found that the respondents' refusal to allow the applicant to express her gender identity while incarcerated constituted unfair discrimination under section 8 of PEPUDA and violated her constitutional rights to equality, dignity, and freedom of expression. The neutral application of prison rules failed to reasonably accommodate transgender inmates, resulting in manifestly unfair treatment. The court held that reasonable steps could be taken to balance safety concerns with the applicant's rights, such as allowing her to express her gender identity in a single cell. International law and constitutional obligations require the state to respect, protect, and fulfil the rights of...

Citation
[2019] ZAEQC 4
Parties
Applicant: Jade September; Respondent: Mr Subramoney N.O.; Respondent: Minister of Justice and Correctional Services; Respondent: National Commissioner, Department of Correctional Service; Respondent: Mr Visagie N.O.; Amicus Curiae: Gender Dynamix
Court
Equality Court
Jurisdiction
South Africa
Judgment Date
23 September 2019
Case Number
EC10/2016
Procedural Posture
Review Application / Final Judgment
Outcome
Application granted in part; declaratory and mandatory relief ordered to protect the applicant's rights to gender expression, dignity, and equality.
Judges
Fortuin
Legal Topics
Unfair Discrimination, Gender Identity, Reasonable Accommodation, Human Dignity, Freedom of Expression, Prisoners Rights
Constitutional Law Civil Procedure Family and Children Unfair Discrimination Gender Identity Reasonable Accommodation Human Dignity Freedom of Expression +1 more

Case Brief

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Parties

Jade September

Applicant

Mr Subramoney N.O.

Respondent

Minister of Justice and Correctional Services

Respondent

National Commissioner, Department of Correctional Service

Respondent

Mr Visagie N.O.

Respondent

Gender Dynamix

Amicus Curiae

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether the respondents' refusal to allow the applicant to express her gender identity while incarcerated constitutes unfair discrimination under PEPUDA.
  2. 2 Whether the disciplinary measures, including segregation and confiscation of gender-affirming items, amount to harassment and unconstitutional treatment.
  3. 3 Whether the respondents are obliged to reasonably accommodate transgender inmates' rights to dignity, equality, and freedom of expression.

Ratio Decidendi

The court found that the respondents' refusal to allow the applicant to express her gender identity while incarcerated constituted unfair discrimination under section 8 of PEPUDA and violated her constitutional rights to equality, dignity, and freedom of expression. The neutral application of prison rules failed to reasonably accommodate transgender inmates, resulting in manifestly unfair treatment. The court held that reasonable steps could be taken to balance safety concerns with the applicant's rights, such as allowing her to express her gender identity in a single cell. International law and constitutional obligations require the state to respect, protect, and fulfil the rights of...

Court Disposition

Application granted in part; declaratory and mandatory relief ordered to protect the applicant's rights to gender expression, dignity, and equality.

Orders

  • It is declared that the first respondent's refusal to allow the applicant to express her gender identity between March 2016 and June 2017 constituted unfair discrimination under section 8 of PEPUDA and is unlawful and unconstitutional.
  • The first respondent is ordered to remove from the applicant's correctional services record all charges or infractions relating to her gender expression prior to this order.