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[2019] ZAEQC 4
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September v Subramoney NO and Others (EC10/2016) [2019] ZAEQC 4; [2019] 4 All SA 927 (WCC) (23 September 2019)
IN
THE EQUALITY COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: EC10/2016
JADE
SEPTEMBER
Applicant
V
MR
SUBRAMONEY
N.O.
1st
Respondent
THE
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES
2nd
Respondent
THE NATIONAL
COMMISSIONER,
DEPARTMENT
OF CORRECTIONAL SERVICE
3rd
Respondent
MR
VISAGIE
N.O.
4th
Respondent
and
GENDER
DYNAMIX
Amicus
Curiae
JUDGMENT: MONDAY 23
SEPTEMBER 2019
FORTUIN,
J:
"A
society should be judged not by how it treats its outstanding
Citizens, but by how it treats its criminals."
Fyodor
Dostoyevsky
A.
INTRODUCTION
[1]
The applicant, Ms Jade September, who is currently
incarcerated at Malmesbury Medium Correctional Centre, is a
transgender person.
She brings this application to be allowed to
express her gender identity while in prison. The applicant was born
male and is currently
anatomically still male.
[2]
It is the applicant's case that the respondents' treatment
constitutes unfair discrimination and harassment under the Equality
Act.
This Court is requested to order just and equitable relief for
the violation of her fundamental constitutional rights to equality
and human dignity, including an order that the respondents permit her
to express her gender identity.
[3]
The application is brought in terms of the Promotion of
Equality and Prevention of Unfair Discrimination Act, 4 of 2000
("PEPUDA"),
in the applicant's own interest and also in the
public interest in terms of ss 20(a) and (d). It is the applicant's
contention
that, not allowing her to express her gender identity
while incarcerated, amounts to unfair discrimination and harassment
against
her.
[4]
The first respondent is Mr Subramoney. At the time of the
launching of these proceedings, he was head of Helderstroom
Correctional
Centre ("Helderstroom"). He is cited in his
official capacity and he therefore has a direct interest in this
matter.
[5]
The second respondent is the Minister of Justice and
Correctional Services in the national government ("the
Minister")
who is cited in his official capacity. He is cited as
the member of the National Executive who is responsible for the
administration
of Correctional Services (and thus all prisons,
including Helderstroom and Malmesbury Correctional Centre
"Malmesbury")
and for the administration and implementation
of the Correctional Services Act 111 of 1998 ("the CSA").
He is cited for
whatever interest he may have in this matter.
[6]
The third respondent is Mr Zach Madise who, at the time of the
launching of these proceedings was the National Commissioner of
Correctional
Services ("the National Commissioner") who is
cited in his official capacity. He is cited for whatever interest he
may
have in this matter.
[7]
The fourth respondent is Mr Visagie who, at the time of the
launching of these proceedings was the Head of Malmesbury. He is
cited
in his official capacity and he therefore has a direct interest
in the matter. The fourth respondent was later joined to these
proceedings.
[8]
Gender Dynamix ("the
amicus'),
represented by the
Legal Resources Centre, Cape Town, was admitted as
amicus curiae
by the consent of the parties to assist the Court by placing
relevant expert evidence before the Court. Gender Dynamix is an
organisation
dealing specifically with trans diverse persons and
their rights. Their submissions had been most helpful and for which I
am grateful.
[9]
This application was initially brought for certain relief.
Subsequently, the Notice of Motion was amended and the following
relief
was sought:
"1. Declaring
that the first respondent's failure and or refusal to allow the
applicant to express her gender by-
1.1
Not
allowing her to wear female underwear and make-up;
1.2
Ordering
her to cut her hair; and
1.3
Refusing
and/or failing to address her
as a
woman or through the use of
the female pronoun, constituted unfair discrimination under section 8
of the Promotion of Equality and
Prevention of Unfair Discrimination
Act 4 of 2000 ("PEPUDA”)
and was thus unlawful and
unconstitutional.
2. Declaring that the
applicant's detention in solitary confinement from 19 March 2016 to 4
April 2016 constituted unfair discrimination
under section 8 of
PEPUDA and harassment under section 11 of PEPUDA and was thus
unlawful and unconstitutional.
3. In the event that
the applicant is again incarcerated at Helderstroom Correctional
Centre, directing the first respondent to
allow the application to
express her gender identity by
–
3.1
Returning to the applicant her female underwear and
make-up. Allowing her to use such in future and not confiscating such
in future;
3.2
Not to direct or force the applicant to cut her hair;
and
3.3
addressing the applicant
as a
woman and through
the use of the female pronoun; and to
3.4
Direct all correctional services officials who are
employed under his authority at Helderstroom, Maximum Correctional
Centre to
do the
same.
4. Directing the first
respondent to apologise to the applicant in writing for not allowing
her to express her gender and for placing
her in solitary confinement
form 19 March 2016 to 4 April 2016 in response to and in effect as
punishment for her expressing her
gender.
5. In the event that
the applicant is again incarcerated at Helderstroom Correctional
Centre, directing the first respondent to
ensure that the applicant
is not again placed in solitary confinement or subjected to any other
punishment, including the revocations
of her A Group Status and other
privileges, for/or in response to/or as
a
punishment for
expressing her gender identity (by wearing female underwear and
make-up, not cutting her hair and/or referring to
herself or
requesting correctional services officials to refer to her as
a
woman or through the use of the female pronoun.)
6. Directing the first
respondent to remove from the applicant's correctional services'
record/file, the charges or infractions
that were entered against her
on 19 March 2016 and 28 May 2016 respectively, in relation to her
expressing her gender identity.
6(a). 1. Declaring
clause 2.3 (a) of the Standing Order on Personal Hygiene to be
unlawful to the extent that it prohibits and/or
prevents the
respondents from issuing the applicant (and other transgender female
prisoners) with female underwear and/or from
being allowed to wear
such.
2. In order to cure
the illegality of clause 2.3, striking out the word "underpants"
and, in its place, reading in the
words "gender appropriate
underwear".
6(b). Declaring that
the fourth respondent's failure and/or refusal to allow the applicant
to express her gender by-
1.
Not
allowing the applicant to wear female underwear, make-up and
jewellery, and;
2.
Not
allowing the applicant to wear her hair long and in feminine styles;
and
3.
Refusing
to address the applicant as a women and through the use of the female
pronoun constitutes unfair discrimination under section
8 of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000 ("PEPUDA'J and thus to be unlawful and
unconstitutional.
6(c). Directing the
fourth respondent to allow the applicant to express her gender
identity by-
1.
Returning
to the applicant her female underwear, make-up and jewellery,
allowing her to use such in future and not confiscating
such in
future;
2.
Allowing
the applicant to wear her hair long and in feminine styles;
3.
Addressing
the applicant as
a
women and using the female pronoun;
4.
Directing
all correctional service officials who are employed under his
authority at the Malmesbury Correctional Centre to do the
same.
6(d). Directing the
fourth respondent to apologise to the applicant in writing for not
allowing her to express her gender identity
from 30 November to date.
7. Directing the first
and fourth respondent (jointly and severally, the one paying the
other to be absolved) to pay the costs of
the application.
8.
Directing the second and third respondents (jointly and
severally, the one paying the other to be absolved) to pay the costs
of
the application in the event of their opposition.
9.
Any further or alternative relief that the Court deems appropriate."
B.
COMMON CAUSE BACKGROUND FACTS
[10]
The applicant was born and raised as a boy. From a young age, the
applicant knew that, although born anatomically male, her
gender was
that of a girl/woman.
[11]
As a teenager, the applicant entered into a relationship with an
older man who wanted her
"to be gay and not transgender'.
The
applicant, out of fear that the relationship would otherwise end,
acquiesced to an extent. Since 2012, when this relationship
in fact
ended, the applicant began living more fully as a woman in terms of
dress and lifestyle.
[12]
The applicant was sentenced to 15 years' imprisonment in the Cape
Town Regional Court on 28 May 2013, after being convicted
of murder,
theft and attempted theft of a motor vehicle. She was incarcerated
firstly at Pollsmoor Admission Centre ("Pollsmoor"),
then
at the Helderstroom Maximum Correctional Centre ("Helderstroom")
in Caledon, where she was placed in a single cell
as a disciplinary
measure. Hereafter she was transferred to Malmesbury Medium
Correctional Centre ("Malmesbury") on 15
June 2017, where
she is currently incarcerated.
[13]
On 6 March 2016, the applicant informed the first respondent that she
would be pursuing treatment to enable her to transition.
[14]
After a number of disagreements about whether she was allowed to
express her gender identity while at Malmesbury, the applicant
attempted to commit suicide.
C.
APPLICANT'S VERSION
a.
General
[15]
It is the applicant's version that, even though she is anatomically
still male, her own internal understanding of her gender
is not that
of a man, but of a woman.
[16]
Further, that she wants to undergo medical treatment in future to
enable her to "live more fully" as a woman, but
that she
has not as yet had access to such treatment. Thus, she expresses her
gender identity in the only manner available to her,
e.g. by dressing
as a woman, by wearing her hair long and in feminine styles, by
wearing make-up and by referring to herself (and
requesting others to
refer to her) as a woman and through the use of the female pronoun.
[17]
Moreover, it was submitted by the applicant that she did not
institute these proceedings in order to
"be difficult, but
that her motivation was, until she can undergo medical treatment in
order to transition"
that this was the only way in which she
can express her gender identity.
[18]
It is her case that her gender identity is the core and the essence
of who she is as a human being.
[19]
She submitted that, since her incarceration, the respondents denied
her permission to express her gender identity by not allowing
her to:
· Wear her hair
long and in feminine styles;
· Wear make-up;
· Wear female
underwear; and
· Be referred to
as a female through the use of the female pronoun.
[20]
It is the applicant's case that the respondents' treatment
constitutes unfair discrimination and harassment under the Equality
Act ("PEPUDA"). This court is requested to order just and
equitable relief for the violation of her fundamental constitutional
rights to equality and human dignity, including an order that the
respondents permit her to express her gender identity.
[21]
When she was incarcerated at Pollsmoor, she was allowed to express
her gender identity. She was also allowed to do the same
during her
initial incarceration at Helderstroom. She was, for example, allowed
to wear her hair long, in braids and neatly tied
up. She was also
allowed to wear a bit of makeup. There were no complaints about this
from anyone, including the first respondent.
She was even permitted
to dress up and take part in drama performances and talent shows.
[22]
According to her, this position changed dramatically when she was
temporarily transferred to Brandvlei Correctional Centre
("Brandvlei"). Her make-up and female underwear were
confiscated upon her arrival there, and she was referred to as a
man.
None of her complaints, including the complaint about a certain DCS
official's derogatory remarks were followed up.
[23]
On her return to Helderstroom, her circumstances were worse than
ever. According to her, the acceptance of her expression of
her
gender identity was no longer the
status quo.
In fact, it
became much worse and resulted in her detention in segregation. This
detention is discussed in detail below.
[24]
It is the applicant's case that the first respondent refused to allow
her to express her gender identity while she was incarcerated
at
Helderstroom from March 2016 until June 2017.
[25]
Moreover, that she was not allowed to:
· wear her hair
long and in feminine styles;
· wear make-up;
· wear female
underwear;
· wear jewellery;
and
· be addressed as
a woman through the use of the female pronoun.
[26]
It is her submission that this conduct by the first respondent
constitutes unfair discrimination. Even though the applicant
is no
longer detained at Helderstroom, she persists with this application
in relation to the alleged violation of her rights to
equality and
human dignity during detention at Helderstroom on the two following
basis:
· In her own
interest in terms of section 20(a) of "PEPUDA". On her
behalf it is submitted that it cannot be excluded
as a possibility
that she, in future, may be transferred back to Helderstroom.
· In terms of
section 20(d) of "PEPUDA", in the public interest, and, in
particular, in the interest of other transgender
inmates who will be
incarcerated at Helderstroom in future.
[27]
It is further her case that the feeling of her being targeted by the
prison authorities was perpetuated, after being transferred
to
Malmesbury, when the fourth respondent changed his attitude after
initially allowing her to express her gender identity for
a period of
almost six months.
[28]
These feelings intensified and resulted in her attempting to
take her own life after a confrontation with the fourth respondent in
his office on 7 December 2017. Accordingly, her submission is that
the fourth respondent discriminated against her on the basis
of her
transgender identity.
[29]
It is further the applicant's case that, should she be allowed
to express her gender identity, she would not be at an increased risk
of sexual abuse as, on her version, for the total period of her
incarceration, including the lengthy periods of when she was
permitted
to express her gender identify, only one inmate has
sexually harassed or threatened her.
[30]
The applicant's incarceration history can be summarised as
follows: During May 2013, she was sentenced and held at Pollsmoor.
Thereafter,
she was incarcerated at Helderstroom (first). She was
then temporarily transferred to Brandvlei and back to Helderstroom in
March
2016 (second). She is currently held at Malmesbury.
b.
The applicant's detention in segregation at Helderstroom
[31]
The applicant is of the view that her detention in
"segregation" under section 30 of the Correctional Services
Act 111
of 1998 (" the CSA") for a period of 17 days from
19 March 2016 to 4 April 2016 was punishment for asserting her gender
identity in response to the authorities' disregard thereof.
[32]
On 6 March 2016, at her first meeting with the first
respondent, she told him that she would be pursuing medical treatment
to enable
her to transition. According to her, his response was that
he would obtain legal assistance to resist such attempts on her part
and that he
"would not have"
her
"looking
like
a
woman"
because she is a man.
[33]
On 19 March 2016, during conducting his rounds, the first
respondent entered the applicant's cell. He instructed her that she
was
to stand when she addressed him. He addressed her as a man. He,
thereafter introduced disciplinary measures by removing her make-up,
female underwear and jewellery, and detained her in segregation
because of the disrespectful manner in which she behaved towards
him.
However, it is her version that she was so detained because she was
expressing her gender identity.
[34]
It is further her version that she did not intend any
disrespect. She did so simply to express and assert her gender
identity in
response to the first respondent's complete negation of
it. Consequently, the applicant was detained in segregation.
[35]
It is the applicant's version that her detention in
segregation constituted harassment and unfair discrimination under
the relevant
provisions of "PEPUDA".
[36]
After the applicant was released from segregation, she was
forced to cut her hair and was forbidden to wear what was left of her
make-up. In addition, she was forced to sign a warning in relation to
her hair and make-up infractions and was ordered not to wear
make-up
any longer. She was told that if she did so she would forfeit her
"Grade A Group Status"
(the status achieved for good
behaviour and for not contravening prison rules) and other
privileges.
c.
Incident of Sexual Harassment at Helderstroom
[37]
While the applicant was still held in Helderstroom Maximum,
and shortly before she was placed in segregation Ranchell "Midnight"
Goodman ("Ranchell") made sexual advances towards her,
which she rejected. By the time the applicant was taken out of
segregation she discovered that Ranchell was transferred to the
Medium Section. Before he left, he however gave a message to another
inmate that he would be waiting for the applicant in the Medium
Section. According to her she felt safe in the Maximum Centre as
Ranchell was no longer there. For this reason she did not want to be
transferred to the Medium Section. During March 2016, the
applicant
was in fact transferred to Helderstroom Medium.
[38]
On her version, the respondents were aware of this threat, but
continuously failed to move her to a safer facility. She was held
at
Helderstroom Medium, where the threat emanated from. According to
her, she informed various officers at Helderstroom of the
threat and
the need to be transferred. She was finally transferred to Malmesbury
on 15 June 2017.
[39]
The assault by Ranchell on the applicant occurred prior to her
transfer to Malmesbury. According to the applicant, she has neutral
or positive relationships with other prisoners.
[40]
It is her version that, instead of ensuring her safety, the
respondents did the opposite and transferred her to the correctional
services facility where this inmate was incarcerated, thereby
exposing her to the risk of sexual assault.
D.
RESPONDENTS' VERSION
a.
General
[41]
The respondents oppose this application on the basis that the
applicant's gender identity is constrained by the following facts:
· Her birth
assigned identity;
· Her physical,
genital and reproductive anatomy; and
· The safety and
security of the applicant whilst serving a sentence in a male
correctional centre.
[42]
It is the respondent's contention that:
· The applicant
was prosecuted and incarcerated as a male;
· The applicant
biologically and anatomically remains a male;
· The applicant is
legally identified as a male in terms of the applicant's identity
document.
[43]
It is accordingly the respondents' case firstly that, because
the applicant is anatomically and legally male, there is no ground
on
which it could have discriminated against her, as she is legally
still male. Secondly, that even if discrimination is established
on a
particular ground, such discrimination does not amount to unfair
discrimination.
[44]
It is the respondents' submission that in terms of section
12(1) of the Correctional Services Act No 111 of 1998 ("the
CSA"),
the State is indeed obliged to provide, within its
available resources, adequate health care services, based on the
principles
of primary health care, in order to allow every inmate to
lead a healthy life. However, section 12(2) of the CSA provides that
no inmate is entitled to cosmetic medical treatment at State expense.
Accordingly, the applicant's request to undergo gender transitioning
surgery was rejected.
b.
Incident of sexual harassment
[45]
It is the respondents' version that it did not unfairly
discriminate against the applicant and denies any form of harassment
in
that:
45.1 The applicant's
female underwear and make-up was removed for the applicant's own
safety and retained in the private belongings
area at reception.
45.2 The applicant
informed the first respondent on 6 March 2016 of a desire to undergo
gender transitioning and of an application
for medical treatment. The
reqest for medical treatment fell under the definition of cosmetic
medical surgery.
45.3 The respondents
submit that the incident involving Ranchell serves as support for its
contention that granting the applicant
her relief would expose her to
an increased risk of sexual harassment.
c.
The applicant's detention in segregation
[46]
The respondents dispute the applicant's allegation that she
was initially allowed at Helderstroom to express her gender identity
through various means, including being allowed to dress up and take
part in drama performances and talent shows.
[47]
Moreover, the allegation by the applicant that, on return to
Helderstroom after a short period at Brandvlei the circumstances were
worse than ever, is denied by the respondents and it is their version
that:
· The applicant's
female underwear and make-up was removed for her own safety and
placed in safe keeping at reception; and
· The applicant's
request to undergo gender transitioning surgery while incarcerated
was rejected as sec 12(2) of the CSA
provides that no inmate is
entitled to cosmetic medical treatment at State expense.
[48]
It is the respondents' version that the applicant was placed
in a single cell, not because she expressed her gender, but because
she was belligerent, defiant, aggressive, using violent expressions
and abusive language when asked to hand over her make-up and
for
failing to follow standard security procedures. Accordingly, on the
respondents' version, the applicant was placed in a single
cell as a
disciplinary measure.
[49]
Therefore, according to the respondents, the applicant's
treatment as a male while incarcerated in terms of the legal
framework
is consistent with that of other inmates, and there has
been no difference of treatment or unfair discrimination. What the
applicant
is therefore seeking is to be treated as a woman, whereas
the applicant's legal status is a man.
[50]
It is the respondents' case that the applicant's transgender
requirements placed her in a high security risk category at
Helderstroom,
a maximum security correctional centre where there is a
male population of approximately 770 prisoners with the majority of
the
prisoners serving multiple sentences for violent crimes.
[51]
Moreover, it is submitted by the respondents that the correctional
centre is such that male inmates take physical possession
or
ownership of other male prisoners that display feminine
characteristics.
[52]
In addition, it is submitted that the applicant's request for
communal access to other male prisoners whilst the applicant
express
herself as a female, would expose the applicant to sexual violence,
because
"male rape is an undeniable reality of
incarceration".
[53]
During argument, the court enquired from the respondents' counsel
what the current situation is at prisons in respect of hairstyles,
make-up and underwear. As this information was not available during
the hearing, the respondents were granted an opportunity to
furnish
the court with same. This information was provided on 6 March 2019,
i.e. approximately 4 months after the hearing. The
following relevant
information can be gleaned from the submitted document.
d.
The current position in correctional centres
[54]
According to the Acting Director of Correction Administration,
a prisoner is managed in terms of the personal details appearing on
the warrant of detention, e.g. if a prisoner is identified on the
warrant as male, he will be treated as male while in detention.
[55]
Where a person's sex is altered in terms of the Alteration of
Sex Description and Sex Status Act No 49 of 2003 ("the Sex
Alteration
Act"), that person will be treated in accordance with
his/her altered sex. This is based on the fact that such a person's
sex would have been altered on the birth register. The treatment of a
prisoner is therefore in accordance with the details on the
birth
register.
[56]
Currently, no provision is made for persons who have commenced
treatment for a sex alteration but before a change on the population
register occurred.
[57]
In respect of hairstyles, make-up and underwear in particular,
the following was submitted by the respondents:
· Male prisoners
are allowed the following toiletries:
· Comb 1
· Razor blades 1
weekly
· Razor 1
· Shaving brush 1
· Soap - general 2
x 200g per month
· Toilet soap 2 x
100 g per month
· Face cloth as
required
· Towel as
required
· Toothbrush 1 x 6
monthly
· Toothpaste 2 x
25ml - 3 weekly
1 x 50ml - 1 monthly
(board cases) if available
1 x 100 ml- 2 monthly
· Toilet paper as
required
Female
prisoners are allowed the following toiletries:
· Comb 1
· Razor blades as
required
· Razor 1
· Soap - general 2
x 200g per month use
· Toilet soap 2 x
100 g per month
· Face cloth as
required
· Towel as
required
· Toothpaste (as
for males)
· Toothbrush 1 x 6
monthly
· Sanitary towels
as required
· Toilet paper as
required
[58]
All prisoners are allowed the following in respect of their
hair:
· They must be
given the opportunity to shave or be shaved at all times.
· They are
permitted to wear their hair (including facial hair) in any style
consistent with health, hygiene, security and
safety.
· When working in
jobs in which long hair constitutes a health or safety hazard they
will be required to wear hair covering.
· A prisoner's
hair may be required to be cut if medical treatment so requires.
[59]
It is further submitted by the respondents that currently,
male prisoners are allowed the normal male underwear including 2
underpants,
while female prisoners are allowed the normal female
underwear including panties and bras. Jewellery is allowed only for
certain
male and female prisoners, i.e. A Group: C-Max (Phase 2)
(maximum/medium and medium categories) and unsentenced prisoners.
[60]
Moreover, it is the respondents' submission that there is
currently no provision made regarding make-up in the standing orders.
Section 14.6 of the Departmental Order B, Chapter 1,
Admissions of
Prisoners,
determines as follows:
"...
when
sentenced prisoners have toiletries in their possession on admission,
they
may,
according to the discretion of the Head of the
Prisons, be allowed to keep such articles in their possession after
items have been
searched. The number, standard and quality of the
items must be the
same as
that issued to prisoners by the
state."
[61]
The current practice in a female correctional facility is as
follows:
61.1 Make-up is regarded
as toiletries;
61.2 Female prisoners are
allowed to wear make-up;
61.3 Use of make-up is at
the prisoner's own responsibility;
61.4 Make-up is not
stocked or sold at the correctional facility's stores/kiosks; and
61.5 Make-up is provided
by family or friends.
[62]
It is in short the respondent's submission that the applicant
in
casu
is male and has not yet followed the process for
gender reassignment. As a result, it is the respondent's case that
the applicant
is rightly treated as male. Accordingly, there is no
basis for a claim of unfair discrimination on a listed ground.
E.
RELEVANT LEGAL PRINCIPLES
[63]
The Republic of South Africa has a number of laws relevant to
the issue of discrimination and how it relates to gender. Here
follows
a list of these laws and case law in this regard as well as
other relevant issues.
[64]
As this matter deals with the rights of an incarcerated
person, the words of Langa J (as he then was) are worth remembering
when
considering this application:
"The simple
message is that the State must, in imposing punishment, do so in
accordance with certain standards; these will
reflect the values
which underpin the Constitution; in the present context, it means
that punishment must respect human dignity
and be consistent with the
provisions of the Constitution.”
[1]
(a) Domestic Legislation
Chronologically
1.
Identification Act 68 of 1997 ("
Identification
Act"
;)
[65]
Section 7
of the
Identification Act deals
with
assignment of identity numbers. Subsections (1) and (2) read as
follows:
"(1) The
Director-General shall assign an identity number to every person
whose particulars are included in the population
register in terms of
section B.
(2) An identity number
shall be compiled in the prescribed manner out of figures and shall,
in addition to
a
serial, index and control number, consist of
a
reproduction, in figure codes, of the following particulars,
and no other particulars whatsoever, of the person to whom it has
been
assigned, namely-
(a)
his
or her date of birth and
gender
; and ..."
(My emphasis.)
[66]
Section 8
of the
Identification Act reads
as follows:
"8.
Particulars to be included in population register.
-
There
shall in respect of any person referred to in
section 3
, be included
in the population register the following relevant particulars
available to the Director-General, namely-
(a) his or her
identity number referred to in section
7
;
(b) his or her
surname, full forenames,
gender
, date of birth
and the place or country where he or she was born;
... " (My
emphasis.)
a.
Births and Deaths Registration Act 52 of 1992
[67]
The
Births and Deaths Registration Act 51 of 1992 ("the Births and
Deaths Act") provide that notice of a birth must be
given in a
prescribed manner
[2]
.
Thereafter, a birth certificate is furnished.
[3]
The assignment of identity number occurs on the basis of,
inter
alia,
the
gender of the individual.
[4]
[68]
The process prescribed in the Births and Deaths Act in respect
of sex can therefore be described as follows:
68.1
The notice of birth must identify the sex designation;
68.2
A birth certificate reflects the information on the National
Population Register, which includes the sex of a person;
68.3
The National Population Register reflects the sex of an
individual;
68.4
A birth certificate shall in all courts of law, on the face of
it, give evidence of the particulars therein; and
68.5
There are only two sexes recognised in South African Law,
being male and female (a binary model).
b.
Constitution of the Republic of South Africa, 108 of 1996
[69]
The Constitution enshrines equality as both a value under
section 1(a) and 7(1) and a substantive right in terms of section 9:
"1. Republic
of South Africa
- The republic of South Africa is one,
sovereign, democratic state founded on the following values:
(a)
Human
dignity, the achievement of equality and the advancement of human
rights and freedoms.
…
7.
Rights-
(1) This Bill of Rights is
a
cornerstone of
democracy in South Africa. It enshrines the rights of all people in
our country and affirms the democratic values
of human dignity,
equality and freedom.
9.
Equality-
(1) Everyone is equal before the law and has the right to
equal protection and benefit of the law.
(2) Equality includes
the full and equal enjoyment of all rights and freedoms. To promote
the achievement of equality, legislative
and other measures designed
to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may
be taken.
(3) The state may not
unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender,
sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief,
culture, language and birth.
(4) No person may
unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3).
National legislation must be
enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on
one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination
is fair."
[70]
These
constitutional protections were at the heart of a number of decisions
in our courts. In the matter of
Kos
and Others v Minister of Home Affairs and Others
[5]
,
the
applicants included three transgender spouses who had been born male,
but had subsequently undergone sex/gender changes to become
female.
Each had female spouses, whom they had married in terms of the
Marriage Act 25 of 1961 ("Marriage Act"), prior
to their
sex/gender change. The application arose out of the difficulties
being faced by the applicants in attempting to have their
sex
description altered on their birth registers. The Minister argued
that the marital law regime precluded those married under
the
Marriages Act from remaining married if they subsequently underwent
"gender reassignment" or from changing their
sex
description. The Court held that the Department was obliged to
determine the applications submitted in terms of the Alteration
of
Sex Description and Sex Status Act 49 of 2003 ("the Alteration
Act") irrespective of the person's marital status.
[71]
The Court declared that the Department's conduct was
inconsistent with the Constitution-
"and unlawful in
that it-
(a)
infringed the said applicants' right to administrative
justice;
(b)
infringed the said applicants' rights and those of the second,
fourth and sixth applicants to equality and human dignity; and
(c)
was
inconsistent with the state's obligations in terms of s7(2) of the
Constitution."
[72]
The Court's reasoning for this conclusion appear from, amongst
others, the following paragraphs:
"{70] What is
also strikingly absent from the respondents' answer is any
acknowledgement of the expressly enshrined constitutional
principle
that statutes must be interpreted in
a
manner consistent with
the promotion of the spirit, purport and object of the Bill of
Rights. Although s 39(2) of the Constitution
places the
interpretative duty on adjudicative bodies such as courts and
tribunals, the provision necessarily implies that organs
of state
charged with administering legislation are expected to do so
consistently with the meaning which the courts are called
upon to
give it. Organs of state fulfil that obligation by complying with s
7(2) of the Constitution, which obliges the state
to respect,
protect, promote and fulfil the rights in the Bills of Rights'.
The
manner in which the applications by the transgender spouses were
treated manifests a regrettable lack of compliance by the Department
with its constitutional obligations in a number of respects.
…
[82] The Marriage Act,
moreover, does not contain anything prohibiting
a
party to
a
marriage duly solemnised in terms of the formula prescribed in s
30(1) from undergoing
a
sex-change or obtaining an altered
birth certificate in terms of the Alteration Act. Any provision that
had such an effect would,
for
a
number of reasons, be of very
doubtful constitutional validity. It would probably be found to
offend against the basic rights of
everyone to equality because it
would be likely to unfairly discriminate against affected parties on
one or more of the grounds
set out in s 9(3) of the Bill of Rights,
and also to unjustifiably infringe the right that everyone has to
bodily and psychological
integrity, including the right to security
in and control over their body (s12(2)(b) of the Bill of Rights.
[73]
In
MEC for
Education: KwaZulu-Natal and Others v Pillay
[6]
,
the
Constitutional Court held that:
"The
Equality Act is clearly the legislation contemplated in section 9(4)
and gives further content to the prohibition on unfair
discrimination.
"
[7]
[74]
Section
10
of
the Constitution guarantees everyone the right to dignity. Dignity is
also the first and foremost value upon which the Republic
of South
Africa is founded.
[8]
The right
to and value of dignity infuse all other rights, including the right
to equality. Section 10 reads as follows:
"10. Human
dignity:
-Everyone has inherent dignity and the right to
have their dignity respected and protected."
[75]
The South African Constitutional Court dealt with the right to
dignity in one of its first decisions after its inception in 1995:
"The rights to
life and dignity are the most important of all human rights, and the
source of all other personal rights in
Chapter Three. By committing
ourselves to
a
society
founded on the recognition of human rights we are required to value
these two rights."
[9]
[76]
Section 12
deals with freedom and security and reads as
follows:
"12. Freedom
and security of the person-(1)
Everyone has the right to
freedom and security of the person, which includes the right
-
(a) not to be deprived
of freedom arbitrarily or without just cause;
(e) not to be treated
or punished in
a
cruel, inhuman or degrading way."
[77]
Langa
J (as he then was) held that
"the
common thread running through the assessment of each phrase [in
s12(1)(e)] is the identification and acknowledgement of
society's
concept of decency and human dignity."
[10]
4. Correctional Services
Act 111 of 1998
[78]
The Correctional Services Act 111 of 1998 ("CSA")
determines the rules and regulations applicable in correctional
centres.
The relevant sections are as follows:
"12. Health care-
(2) (a} Every inmate has the right to adequate medical treatment but
no inmate is entitled to cosmetic medical
treatment at
State
expense.
…
23 Disciplinary
infringements- (1) A prisoner commits
a
disciplinary
infringement if he or she-
(a)
replies dishonestly to legitimate questions put by
a
correctional official or other person employed in
a
prison;
(b)
disobeys
a
lawful command or order by
a
correctional official or fails to comply with any regulation or
order;
(c)
is abusive to any person;
(d)
fails or refuses to perform any labour or other duty
imposed or authorised by this Act;
(e)
is careless or negligent with regard to any labour or
duty imposed or authorised by this Act;
(f)
uses insulting, obscene or threatening language;
(g)
conducts himself or herself indecently by word, act or
gesture;
(h)
commits an assault;
(i)
communicates with any person at
a
time when or
a
place where it is prohibited;
(j)
makes unnecessary noise or causes
a
nuisance;
(k)
without permission leaves the cell or other assigned
place;
(l)
in any manner defaces or damages any part of the prison
or any article therein or any state property;
(m)
possesses
an unauthorised article;
(n)
commits theft;
(o)
creates or participates in a disturbance or foments a
mutiny or engages in any other activity that is likely to jeopardise
the security
or order of a prison;
(p)
professes to be a member of a gang or takes part in
gang activities;
(q)
makes a dishonest accusation against a correctional
official or fellow prisoner;
(r)
conceals, destroys, alters, defaces or disposes of an
identification card, document or any issued article;
(s)
commits an act with the intention of endangering his or
her life, injuring his or her health or impairing his or her ability
to
work; or
(t)
attempts to do anything referred to in this section.
(2) A prisoner who
assists, conspires with or incites another person to contravene a
provision of subsection (1) commits a disciplinary
infringement.
…
23. Procedures and
penalties- (3) Where the hearing takes place before the Head of the
Correctional Centre or the authorised official,
the following
penalties may be imposed severally or in the alternative: (a) A
reprimand; (b) a loss of gratuity for a period not
exceeding one
month; (c) restriction of amenities for a period not exceeding seven
days."
5. Promotion of Equality
and Prevention of Unfair Discrimination Act 4 of 2000 ("PEPUDA")
[79]
One of stated objects of the Equality Act is
"to enact
legislation required by section 9 of the Constitution."
[80]
"Discrimination"
is defined in section 1 as-
"...
any act or
omission, including a policy, law, rule, practice, condition or
situation which directly or indirectly-
(a)
imposes burdens, obligations or disadvantage on; or
(b)
withholds benefits, opportunities or advantages from, any
person on one or more of the prohibited grounds;"
The
"prohibited grounds"
are defined in section 1 as:
"(a)race, gender,
sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion,
conscience, belief,
culture, language and birth; and HIV/AIDS status; or
(c)
any
other ground where discrimination based on that other ground-
(i)
causes or perpetuates systemic disadvantage;
(ii)
undermines human dignity; or
(iii)
adversely
affects the equal enjoyment of a person's rights and freedoms in a
serious manner that is comparable to discrimination
on a ground in
paragraph (a);"
[81]
Section 4
is titled
"Guiding principles"
and
subsection (2) provides:
"(2) In the
application of this Act the following should be recognised and taken
into account:
(a)
The
existence of systemic discrimination and inequalities, particularly
in respect of race, gender and disability in all spheres
of life as a
result of past and present unfair discrimination, brought about by
colonialism, the apartheid system and patriarchy;
and
(b)
the
need to take measures at all levels to eliminate such discrimination
and inequalities.
"
[82]
Section 6
provides that:
"Neither
the
State nor any person may unfairly discriminate against any person."
[83]
Section 8 prohibits unfair discrimination on the ground of
gender and reads as follows:
"Subject to
section 6, no person may unfairly discriminate against any person on
the ground of gender,
... "
[84]
Section 13
provides for the burden of proof as follows:
"(1) If the
complainant makes out
a prima facie
case of discrimination-
(a)
the
respondent must prove, on the facts before the court, that the
discrimination did not take place as alleged; or
(b)
the
respondent must prove that the conduct is not based on one or more of
the prohibited grounds.
(2) If the
discrimination did take place-
(a)
on
a
ground in paragraph (a) of the definition of
'prohibited
grounds',
then it is unfair, unless the respondent proves that the
discrimination is fair;
(b)
on
a ground in paragraph (b) of the definition of
'prohibited
grounds',
then it is unfair-
(i)
if one or more of the conditions set out in paragraph (b) of
the definition of
'prohibited grounds'
is established; and
(ii)
unless the respondent proves that the discrimination is fair."
[85]
In order to determine the fairness or lack thereof,
section
14
lists the factors that must be taken into account. The
relevant parts read as follows:
"(2) In
determining whether the respondent has proved that the discrimination
is fair, the following must be taken into account:
(a)
The
context;
(b)
the
factors referred to in subsection (3);
(c)
whether the discrimination reasonably and justifiably
differentiates between persons according to objectively determinable
criteria,
intrinsic to the activity concerned.
(3) The factors
referred to in subsection (2) (b) include the following:
(a)
Whether the discrimination impairs or is likely to impair
human dignity;
(b)
the
impact or likely impact of the discrimination on the complainant;
(c)
the
position of the complainant in society and whether he or she suffers
from patterns of disadvantage or belongs to
a
group that
suffers from such patterns of disadvantage;
(d)
the
nature and extent of the discrimination;
(e)
whether the discrimination is systemic in nature;
(f)
whether the discrimination has
a
legitimate purpose;
(g)
whether there are less restrictive and less disadvantageous
means to achieve the purpose;
(h)
whether and to what extent the respondent has taken such steps
as being reasonable in the circumstances to-
(i)
address the disadvantage which arises from or is related to
one or more of the prohibited grounds; or
(ii)
accommodate diversity.
"
5. Alteration of Sex
Description and Sex Status Act 49 of 2003 ("Alteration Act")
[86]
The purpose of the Alteration Act is as stated in its
preamble:
"To provide for
the alteration of the sex description of certain individuals in
certain circumstances; and to amend the
Births and Deaths
Registration Act, 1992
, as
a
consequence; and to provide for
matters incidental thereto."
[87]
Although this Act does not give a definition of "gender",
it does in
section 1
provide the following definitions:
"'gender
characteristics'
means the ways in which a person
expresses his or her social identity as a member of a particular sex
by using style of dressing,
the wearing of prostheses or other means;
'gender
reassignment'
means a process which is undertaken for the
purpose of reassigning a person's sex by changing physiological or
other sexual characteristics,
and includes any part of such a
process;
'primary sexual
characteristics'
means the form of the genitalia at birth;
'secondary sexual
characteristics'
means those which develop throughout life
and which are dependant
[sic]
upon the hormonal base of the
individual person;
'sexual
characteristics'
means primary or secondary sexual
characteristics or gender characteristics.
"
(b) International Law
1.
South Africa's Obligation to consider
[88]
A number of pieces of domestic legislation obliges courts to
consider international law when interpreting the Bill of Rights.
Section 39
of the Constitution provides:
"Interpretation
of Bill of Rights
39. (1) When
interpreting the Bill of Rights, a court, tribunal or forum-
(a)
must
promote the values that underlie an open and democratic society based
on human dignity, equality and freedom;
(b)
must
consider international law; and
(c)
may
consider foreign law.
(2) When interpreting
any legislation, and when developing the common law or customary law,
every court, tribunal or forum must
promote the spirit, purport and
objects of the Bill of Rights."
[89]
Section 3
of the Equality Act provides as follows:
"3 Interpretation
of Act
(1)
…
(2)
Any
person interpreting this Act
may be mindful of-
(a)
Any
relevant law or code of practice in terms of a law;
(b)
international law, particularly the international agreements
referred to in section 2 and customary international law;
(c)
comparable foreign law. ... "
[90]
The rights of transgender persons had been at the centre of
numerous constitutional matters litigated globally in different
jurisdictions.
I found it necessary to take account of these
international views when deciding this application.
2. International Covenant
on Economic, Social and Cultural Rights
[91]
The
UN Committee on Economic, Social and Cultural rights (CESCR), General
Comment 20, dealt with non-discrimination in economic,
social and
cultural rights. (See art. 2, para. 2, of the International Covenant
on Economic, Social and Cultural Rights
[11]
).
It states at para 32:
"Sexual
orientation and gender identity
'Other status'
as
recognized in article 2, paragraph 2, includes sexual orientation.
States parties should ensure that
a
person's sexual
orientation is not
a
barrier to realizing Covenant rights, for
example, in accessing survivor's pension rights. In addition, gender
identity is recognized
as among the prohibited grounds of
discrimination; for example, persons who are transgender, transsexual
or intersex often face
serious human rights violations, such as
harassment in schools or in the workplace."
3. International Rights
of Prisoners
[92]
The
basic principle for the treatment of prisoners was adopted and
proclaimed by General Assembly Resolution 45/111 of 14 December
1990.
In terms of these eleven principles,
inter
alia,
all
prisoners shall be treated with the respect due to their inherent
dignity and value as human beings
[12]
.
It also determines that there shall be no discrimination on various
grounds including sex, birth or other status
[13]
.
[93]
Principle 4
reads as follows:
"4. The
responsibility of prisons for the custody of prisoners and for the
protection of society against crime shall be discharged
in keeping
with
a
State's other social objectives and its fundamental
responsibilities for promoting the well-being and development of all
members
of society.
"
[94]
The
Human Rights and fundamental freedom set out in the United Nations
Declarations are all applicable to prisoners except for the
limitation necessary by the fact of their incarceration.
[14]
4. YOGYAKARTA PRINCIPLES
[95]
Even though there is no international treaty pertaining
exclusively to the rights of sex and gender minorities, in 2009, 29
experts
from 25 countries developed the Yogyakarta Principles on the
application of international human rights law in relation to sexual
orientation and gender identity ("the Yogyakarta Principles").
In 2017, the same group of experts drafted and signed
the Yogyakarta
Principles Plus 10, expanding on the original principles.
[96]
According to the Yogyakarta Principles, "... a//
human beings are born free and equal in dignity and rights. All
human rights are universal, interdependent, indivisible and
interrelated."
Further that gender identity and sexual
orientation "...
are integral to every person's dignity and
humanity and must not be the basis for discrimination or abuse."
[97]
The Yogyakarta Principles defines "sexual orientation" and
gender identity as follows
"[1] Sexual
orientation is understood to refer to each person's capacity for
profound emotional, affectional and sexual attraction
to, and
intimate and sexual relations with, individuals of
a
different
gender or the same gender or more than one gender.
[2] Gender identity is
understood to refer to each person's deeply felt internal and
individual experience of gender, which may
or may not correspond with
the sex assigned at birth, including the personal sense of the body
(which may involve, if freely chosen,
modification of bodily
appearance or function by medical, surgical or other means) and other
expressions of gender, including dress,
speech and mannerisms."
[98]
The following principles are of particular relevance:
·
Principle 6
includes
"the choice to disclose or not to disclose
information relating to one's sexual orientation or gender identity,
as well as
decisions and choices regarding both one's own body and
consensual sexual and other relation with others."
That
includes the obligation on the state to
"repeal any law that
prohibits or criminalises the expression of gender identity,
including through dress, speech or mannerisms,
or that denies to
individuals the opportunity to change their bodies as
a
means
of expressing their gender identity''.
·
Principle 9
deals with the right to treatment with humanity while in
detention. This principle gives everyone the right to be treated with
dignity
while in detention. It also affirms that gender identity is
part of a person's dignity. It
inter alia
obliges states to:
"a) Ensure that
placement in detention avoids further marginalising persons on the
basis of sexual orientation or gender identity
or subjecting them to
risk of violence, ill treatment or physical, mental or sexual
abuse;
…
c) Ensure, to the
extent possible, that all prisoners participate in decisions
regarding the place of detention appropriate to their
sexual
orientation and gender identity;
d) Put protective
measures in place for all prisoners vulnerable to violence or abuse
on the basis of their sexual orientation,
gender identity or gender
expression and ensure, so far as is reasonably practicable, that such
protective measures involve no
greater restriction of their rights
than is experienced by the general prison population;
g) Undertake
programmes of training and awareness-raising for prison personnel and
all other officials in the public and private
sector who are engaged
in detention facilities, regarding international human rights
standards and principles of equality and non-discrimination,
including in relation to sexual orientation and gender identity."
[99]
Principle 19
deals with the right to freedom of opinion and
expression. This principle in its introduction reads as follows:
"Everyone has the
right to freedom of opinion and expression, regardless of sexual
orientation or gender identity. This includes
the expression of
identity or personhood through speech, deportment, dress, bodily
characteristics, choice of name, or any other
means, as well as the
freedom to seek, receive and impart information and ideas of all
kinds, including with regard to human rights,
sexual orientation and
gender identity, through any medium and regardless of frontiers."
[100]
Principle 32
deals with bodily integrity. This Principle
affirms that everyone has the right to bodily and mental integrity,
autonomy and self
determination irrespective of sexual
orientation, gender identity, gender expressions or sex
characteristics.
F.
DISCUSSION
[101]
The respondents submitted that they refused to allow the applicant to
express her gender identity for her own safety and therefore
the
discrimination was fair. Her detention was not in breach of the
applicable substantive and procedural safeguards that apply
under the
Correctional Services Act.
[102
]
It is the case for the respondents, that the applicant's challenge
does not pass the Equality Act test for the following reasons:
· There is no
discrimination on a listed ground. The applicant is legally male and
is treated as such;
· The applicant
has not asserted discrimination on an unlisted ground nor is there
any such discrimination;
· The applicant
has not identified an appropriate comparator; it therefore follows
that there is no discrimination;
· Should this
court find discrimination on a listed ground, the respondents have
met the requisite onus; and
· The applicant
has not met the threshold of unfairness.
[103]
It is further submitted by the respondents that the applicant's
submission that the definition of gender as a listed ground
"includes
transgender identity"
is incorrect as a matter of law for
the following reasons:
· The constitution
does not prohibit unfair discrimination on the ground of transgender
identity, but rather on the grounds
of gender and sex;
· The Births and
Deaths Act provides for a binary model to sex identity of male or
female. Transgender is not provided for;
· The sex identity
legislative scheme provides for sex alteration;
·
Kos and
others
[15]
did not find that gender includes transgender identity;
· The Equality Act
expressly defines "sex" to include "intersex" and
excludes transgender persons; and
· The rights of
transgender persons are recognised through the Sex Alteration Act.
The applicant does not allege that the
law precludes her from gender
reassignment under the Sex Alteration Act.
a. Is "transgender"
a listed ground under "gender" in the Equality Act, the
Constitution and International Instruments?
[104]
Herein below I will separate the incidents complained about by the
applicant into two distinct actions. Firstly, the respondents
disciplinary measure resulting in the applicant being detained in
segregation and secondly, the first and fourth respondents' failure
to allow the applicant to express her gender identity.
[105]
Neither "sex", nor "gender" is defined in the
Equality Act. It is safe to assume that there must be some
distinction between the two, as each is listed as a separate ground.
[106]
C Albertyn & B Goldblatt make the following comments regarding
sex and gender in
Constitutional Law of South Africa
(Juta
Online)
at OS 03 - 07, eh 35 - p55:
"Many national
constitutions refer only to sex as
a
ground of discrimination.
The Final Constitution's expansive list of grounds provides for sex
and gender discrimination as well
as pregnancy discrimination,
a
category often subsumed under sex. The Constitutional Court tends
to use sex and gender interchangeably in the relatively large number
of cases it has considered on these grounds.
Sex
is generally
taken to mean the biological differences between men and women, while
gender is the terms used to describe the socially
and culturally
constructed differences between men and women."
[107]
This
interpretation was used in
Kos
and Others
[16]
the Court stated that:
"Many might think
that that is to state the obvious, but the literature on
transgenderism describes that there is an all too
common tendency to
conflate sex, gender and sexuality, which is misconceived."
[108]
The Oxford English Dictionary (OED) defines "sex" as:
"[e]ither of the two main categories (male and female) into
which humans and many other living things are divided on the basis
of
their reproductive functions",
and
defines "gender" as:
"[e]ither
of the two sexes (male and female), especially when considered with
reference to social and cultural differences
rather than biological
ones. The term is also used more broadly to denote
a
range of
identities that do not correspond to established ideas of male and
female".
[109]
In terms of usage the OED states:
"Although the
words gender and sex are often used interchangeably, they have
slightly different connotations; sex tends to
refer to biological
differences, while gender more often refers to cultural and social
differences and sometimes encompasses
a
broader range of
identities than the binary of male and female".
[110]
What needs to be determined in this matter, is whether the
respondents in this case complied with the basic standard laid
down
in section 12 of the Constitution. In addition, whether her
incarceration as a man denies her, her basic sense of humanness
and
identity. Accordingly, whether she is being subjected to cruel,
inhumane or degrading treatment.
[111]
In casu,
the applicant is being caused severe mental
suffering. Her treatment has resulted in feelings of fear, anguish
and inferiority leading
to humiliation. I am of the view that this
renders her punishment and treatment foul of s 12(1)(e).
[112]
Moreover, I agree with the arguments on behalf of the applicant, that
it is entirely normal for her, as a transgender female,
to want to
transition socially, i.e. to present herself as a woman. Until such
time as she can undergo medical treatment, presenting
and expressing
herself as a woman is the only way in which she can express her
gender identity.
[113]
Wearing certain clothes, applying make-up, fashioning one's hair in
particular ways - as the applicant seeks to do - are all
sorts of
expressions. To deny someone the opportunity or ability to express
themselves as such, in my view, limits their right
under s 16(1). The
respondents' conduct, therefore, limited her right to freedom of
expression.
[114]
The infringement of the right to freedom of expression is
particularly severe when it is connected to another constitutional
right such as the right to freedom of culture or religion. In this
case, it is linked to the rights to dignity and equality. The
applicant's choice of clothing is not merely an expression of taste
or fashion, but the expression of her basic gender identity.
[115]
I am in agreement with the submissions on behalf of the Amicus that
the Equality Act must be interpreted to promote the spirit,
purport
and object of the Bill of Rights in line with s 39(2) of the
Constitution. The state also has an obligation to fulfil,
protect and
respect the rights in the Bill of Rights in terms of s 7(2) of the
Constitution. The Equality Act in s 14(3)(b), in
addition, requires a
consideration of the nature and extent of the discrimination when
determining its fairness. I am of the view
that this assessment
cannot be done without considering the various other rights affected.
[116]
I am accordingly of the view that, while the right to equality is the
primary focus of the Equality Act, the impact of the
applicant's
other constitutional rights is central. This approach was favoured in
the matter of MEC for Education: KwaZulu-Natal
and Others v
Pillay
[17]
:
"It is
unnecessary in this case to decide whether it is possible to rely
directly on the right to freedom of expression under
the Equality
Act, or whether the ban on the nose-stud is an unjustifiable limit on
that right. It suffices to say that the extent
to which
discrimination impacts on other rights will be
a
relevant
consideration in the determination of whether the discrimination is
fair and that the ban on the nose-stud limited Sunali's
right to
express her religion and culture which is central to the right to
freedom of expression."
[117]
The
right to dignity implies protection from conditions or treatment
which offends a person's sense of worth in society.
[18]
Dignity entails recognising everyone's incalculable worth. It
generates an entitlement to be treated with respect and concern.
These ideas are at the centre of the rights culture which we as a
country are aiming at. If the state undermines a person's self-worth
through condemnation of conduct that forms part of a person's
experience of being human, the state violates that person's right
to
dignity.
[19]
[118]
Section 16 (1)
of the Constitution gives everyone the
right to freedom of expression. The section deliberately uses the
concept of "expression"
and not "speech", because
the right is far broader than just freedom of speech.
[119]
Respect
for human dignity thus requires the recognition of and respect for
the unique identity and expression of each individual.
The Indian
Supreme Court has expressly held that the right to dignity includes
the right to respect of one's gender identity. The
South African
Constitutional Court explained in
State
v Makwanyane and Another
[20]
,
that
the right extends to everybody, including those being punished for
their crimes.
[120]
It
also extends to the manner in which a person dresses. In
Pillay,
the
Constitutional Court held that the wearing of a nose stud as a form
of cultural and religious express was also
"central
to right of freedom of expression".
[21]
In
Antonie
v Governing Body, Settlers High School and others
[22]
,
the
High Court held that a person's hairstyle and headgear constituted a
form of protected constitutional expression.
[121]
I find it necessary at this stage to refer to the Indian
courts, in particular, matters dealing with the rights of transgender
persons
and pronounced clearly on their rights.
"Seldom, our
society realizes or cares to realize the trauma, agony and pain which
the members of Transgender community undergo,
nor appreciates the
innate feelings of the members of the Transgender community,
especially of those whose mind and body disown
their biological
sex.
Our
society often ridicules and
abuses
the
Transgender community and in public places like railway stations, bus
stands, schools, workplaces, malls, theatres, hospitals,
they are
sidelined and treated
as
untouchables,
forgetting the fact that the moral failure lies in the society's
unwillingness to contain or embrace different gender
identities and
expressions,
a
mindset
which we have to change."
[23]
…
"Recognition of
one's gender identity lies at the heart of the fundamental right to
dignity. Gender,
as
already
indicated, constitutes the core of one's sense of being
as
well
as
an
integral part of
a
person's
identity. Legal recognition of gender identity is, therefore, part of
right to dignity and freedom guaranteed under our
Constitution.
"
[24]
Finding in respect of
"transgender" as a listed ground
[122]
In the circumstances, I find that, even though "transgender"
is not a listed ground under the Constitution, nor the Equality
Act,
it is the right to equality that is at the centre of this matter, and
in particular how it relates to the right to dignity
and the right to
freedom of expression. In my view, the right of dignity includes the
applicant's right to her gender identity.
b.
Enforceability of International treaties
[123]
This Court is obliged to consider international law when deciding
this matter.
123.1 Section 39(1)(b) of
the Constitution requires that
"[w]hen interpreting the Bill
of Rights,
a
court
...
must consider international
law''.
Though this case concerns the interpretation of PEPUDA,
PEPUDA gives effect to s 9 of the Bill of Rights. To interpret PEPUDA
is
thus to interpret the Bill of Rights, and, therefore,
international law must be considered.
123.2 Moreover, s 233 of
the Constitution mandates that courts prefer interpretations of
legislation - including PEPUDA- that are
consistent with
international law over those that are inconsistent.
[124]
As stated
by the Constitutional Court, there is "...
no
escape from the manifest constitutional injunction to integrate, in
a
way the
Constitution permits, international law obligations into our domestic
law".
[25]
[125]
The
Constitutional Court endorsed these comments in the context of the
final Constitution in
Glenister
[26]
,
where Moseneke DCJ and Cameron J referred to the judgment in
Makwanyane
[27]
in support of
their view that our courts are entitled to consider both binding and
non-binding instruments of international law.
Finding in respect of the
enforceability of International law
[126]
Of course, the weight accorded to international law may vary, with
more weight being given to international law that is binding
on South
Africa.
[28]
But even
non-binding sources, including reports by international bodies, are
important sources of international law, and therefore
important aids
in interpreting the Constitution.
[127]
From the above, it is evident that there is a constitutional
imperative on the state to "...
respect, protect, promote and
fulfil the rights in the Bill of Rights"
in line with s 7(2)
of the Constitution. How this is to be achieved requires a thorough
balancing consideration/act by the respondents.
Finding in respect of
effective relief
[128]
Reasonable accommodation is a factor this court must consider when
determining the fairness of the discrimination in question.
There are
a variety of reasonable steps open to government to accommodate the
applicant. These steps should balance the competing
interests raised
by this dispute. They should allow for gender expression, but also
not undermine the safety of the applicant or
detention facilities. In
my view, the relief granted in
casu
should be nuanced and make
provision for a balanced enforcement of the constitutional rights of
the applicant and the constitutional
obligations of the respondents.
c.
International examples
[129]
In complying with the obligation to consider international law, it is
imperative to consider the different ways in which other
countries
have dealt with similar issues. Various jurisdictions dealt with this
issue differently e.g.:
· adopting a
policy which allows trans diverse and gender diverse inmates access
to clothing and commissary items designated
for female inmates only;
·
deferring
to a gender identity panel of doctors and therapists to make the
decision, not just correctional officers;
[29]
and
· giving
transgender inmates the right to access clothing and make-up
appropriate for their self-identified gender; etc.
[130]
Other,
more liberal international examples also exist e.g. separate
detention facilities exclusively for transgender inmates, thereby
recognising the existence of a third gender, which includes
transgender persons. Separating LGBT prisoners from other inmates
within the same facility is also an option.
[30]
Finding in respect of
international examples
[131]
Considering these examples, it is evident how the rights of
transgender people are respected by different countries and how these
options aim at granting the most dignified and constitutionally
compliant solutions. I am of the view that the respondents in
casu,
should endeavour to reach the same ultimate goal.
[132]
I am aware of the resource implications in following some of
these options. It is common cause that our prisons are overcrowded
and that accommodation in these centres are limited, resulting in
insufficient space to ensure the safety of prisoners as well as
overworked correctional officers. I am of the view that it would not
be effective to order major physical changes to our current
correctional centres in order to make provision for separate
transgender accommodation. I would, accordingly, not order such major
changes at this stage.
[133]
However, this does not prevent the respondents from making
some changes to ensure that all inmates, including the applicant, and
all other transgender inmates are treated with the necessary dignity
and respect which is their constitutional right.
d. Did the respondents
unfairly discriminate against the applicant?
[134]
The respondents submitted that they rebutted the applicant's
claim that discrimination took place on a listed ground. In respect
of the detention in segregation, based on the following evidence, the
respondents have demonstrated that the alleged discrimination
did not
take place in that the applicant:
134.1 Was belligerent,
defiant, aggressive and used violent expressions and abusive
language.
134.2 was informally
disciplined by revoking certain privileges in terms of s 24(3)(c) of
the CSA.
134.3 was moved to a
single cell which is where inmates are accommodated when their
privileges are forfeited.
134.4 was placed in a
single cell not as a means of discipline but of protection.
[135]
On their version, the complaints relating to make-up,
underwear, etc., was not based on a prohibited ground because, while
the applicant
may identify as a transgendered person, she has not
undergone gender reassignment and therefore remains male as a matter
of law.
[136]
On behalf of the applicant it was submitted that the fourth
respondent did not justify his discrimination against her in any way.
[137]
Moreover, that the first respondent has not addressed the
issue of fairness under sections 14(2) and (3) of the Equality Act.
Instead,
he has argued that, to the extent that his refusal to allow
the applicant to express her gender identity constituted
discrimination,
it was "reasonable and justifiable" in the
circumstances. If he had allowed the applicant to express her gender
identity,
she would have been at risk of being sexually assaulted.
[138]
The alleged security of the applicant (and other inmates), if
she were allowed to express her gender identity, bring the following
factors under section 14(3) of the Equality Act to the fore:
· Section 14(3)(f)
- whether the discrimination has a legitimate purpose
· Section 14(3)(g)
- whether and to what extent the discrimination achieves its purpose.
· Section 14(3)(h)
- whether there are less restrictive and less disadvantageous means
to achieve the purpose.
[139]
It is the applicant's submission that the first respondent has
failed to establish that the discrimination against the applicant
was
fair, in that the first respondent has failed to provide any evidence
to demonstrate that the applicant would be a target for
sexual
assault if she were permitted to express her gender identity.
[140]
Considering the submission on both sides it needs emphasising
that the respondents are inevitably meant to provide a safe
environment
for all inmates irrespective of their gender or sexual
orientation.
[141]
To protect the applicant from sexual assault while detained in
a communal cell, the responds have a less restrictive measure
available,
namely for her to be detained in a single cell. On the
first respondent's own version, this particular measure is available.
[142]
The context in which the discrimination has occurred is that
the applicant is incarcerated under the authority and the control of
the respondents. In addition, she will remain incarcerated for at
least the next four-and-a-half years.
[143]
It is common cause that there was a verbal altercation between
the applicant and the first respondent. It is further common cause
that she is subject to the disciplinary rules of the correctional
centre. In my view, the first respondent was entitled to discipline
the applicant in terms of s 24(3) of the CSA, and her detention in a
single cell for violation of this section by disrespecting
the first
respondent was therefore not unfair as it was punishment that would
be meted out to any other inmate who behaved in a
similar manner.
Moreover, am I in agreement with the first respondent that allowing
her to express her gender identity under unsafe
circumstances, would
have put her at risk of being sexually assaulted.
[144]
Our
courts have recognised the extreme vulnerability of prisoners. The
Supreme Court of Appeal has held in this regard that
"[p]risoners
are amongst the most vulnerable in our society to the failure of the
state to meet its constitutional and statutory
obligations.
"
[31]
[145]
In the
National Coalition
case, the Constitutional Court held
as follows in relation to discrimination against homosexual men and
lesbian women:
"The impact of
discrimination on gays and lesbians is rendered more serious and
their vulnerability increased by the fact that
they are
a
political
minority not able on their own to use political power to secure
favourable legislation for themselves. They are accordingly
almost
exclusively reliant on the Bill of Rights for their protection.
"
[32]
[146]
In coming
to this finding, the Constitutional Court cited with approval the
following excerpt from an article by Cameron J
[33]
:
''Traditionally
disadvantaged groups such as women and blacks both constitute
a
majority
of the South African population. Gays and lesbians, by contrast, are
by definition
a
minority.
Paradoxically, their perpetuation as
a
social
category is dependent on the survival of the procreative heterosexual
majority. Their seclusion from political power is in
a
sense
thus ordained, and they will never on their own be able to use
political power to secure legislation in their favour.
"
[34]
[147]
I am in
agreement with the sentiments expressed in the
National
Coalition
[35]
case
and those expressed by Cameron J in the above article. The incident
complained about by the applicant in
casu
however,
does not relate to the applicant's transgender nature, but rather to
a sign of disrespect towards the first respondent.
In my view
therefore, the detention in segregation was not a form of
discrimination.
[148]
In respect of the wearing of make-up and related issues, the first
respondent states the following in his answering affidavit:
"Applicant was
identified as
a
male on the warrant, which was confirmed by
identity document.
...
As
a
male inmate, on admission
applicant received and continues to receive toiletries and clothing
according to his gender. Applicant
is allowed to wear his hair in any
style consistent with the health hygiene, security and safety
measures within the Helderstroom
male correctional facility."
[149]
Unlike my finding above in respect of the detention in segregation,
my finding in respect of the applicant expressing her
gender identity
differs. I am of the view that the first respondent's neutral
application of the rules applicable to all its inmates
at
Helderstroom, (and correctional services facilities generally),
including the applicant, is discriminatory as it does not make
provision for transgender inmates. In the result, the neutral
application of the rules to the applicant causes discrimination
against her on the basis of her gender identity.
[150]
Moreover, should there indeed be a threat, the respondents have
alternative less restrictive measures available to ensure
her safety
instead of refusing her to allow her to express her gender identity.
In line with its obligation, the first respondent
should ensure that
she is not exposed to any known threat of violence while legitimately
disciplining her for an infringement.
[151]
Under
section 14(3)(i) and (ii) of the Equality Act, the principle of
"reasonable
accommodation"
requires
the respondents to take reasonable steps to accommodate
diversity.
[36]
Thus, the
respondents are under an obligation to do so.
[37]
[152]
The extent to which such steps have been taken or not, is therefore
an important factor in determining whether the discrimination
is fair
or not. This is particularly so where, as in this case, the
discrimination arises from a rule or practice that is neutral
on its
face, but which has a marginalising effect on certain portions of
society, or certain portions of the prison community.
[153]
In
Pillay,
the Constitutional Court applied the principle of
reasonable accommodation to the facts before it as follows:
"The
discrimination has had
a
serious
impact on Sunali and, although the evidence shows that uniforms serve
an important purpose, it does not show that the purpose
is
significantly furthered by refusing Sunali her exemption. Allowing
the stud would not have imposed an undue burden on the school.
A
reasonable accommodation would have been achieved by allowing Sunali
to wear the nose ring. I would therefore confirm the High
Court's
finding of unfair discrimination.
”
[38]
Finding in respect of the
unfair discrimination
[154]
On the basis of what is set out above, it is evident that not
permitting the applicant to express her gender identity has
caused
her extreme hardship and prejudice, and that it is fundamentally
important to her to do so.
[155]
The respondents have not demonstrated any prejudice or hardship (to
them or to her inmates) that would arise if they permitted
the
applicant to do so.
[156]
Thus, the respondents' failure to apply the principle of reasonable
accommodation to the applicant and to allow her to express
her gender
identity renders the discrimination in this regard against her
manifestly unfair.
G.
CONCLUSION
[157]
It is common cause that all people in our country, including the
applicant, is entitled to their constitutionally enshrined
human
rights. Yet the applicant is not being afforded that recognition,
protection and respect. She is prevented from expressing
her
identity. Conduct which is part of her experience of being human is
being condemned. She is being denied the personal freedom
to develop
and express her true nature, therefore her dignity is being impacted
on severely by the conduct of the respondents.
[158]
That she is incarcerated and being punished for crimes, does not
vitiate the applicant's right to dignity in any way. The
Constitution
guarantees that all detained persons must be detained consistently
with human dignity. To imprison her contrary to
her right to dignity
violates s 10 and s 35(2)(e) of the Constitution.
[159]
This case is not about whether the binary model used in South Africa
should be expanded to include a third gender, i.e. transgender.
This
binary model is therefore unchallenged and still in force. This case
is also not about whether the applicant should be allowed
to undergo
medical treatment in order to transition. The applicant remains a
transgender woman who has not transitioned medically
and is
therefore, still legally classified as a man. This is and will remain
the position until she completed the process of gender
reassignment.
[160]
This does, however, not give the state permission to neglect seeking
effective relief in complying with its constitutional
obligations.
[161]
The respondents do not appear to be willing to take any reasonable
steps to give effect to the applicant's constitutional
rights. There
are a number of simple measures available to the respondents to
achieve the desired outcome without placing extra
burdens on their
resources or exposing the applicant or other inmates to an increased
safety risk. In this sense, the respondents
have failed in their duty
to accommodate the applicant reasonably.
[162]
This
attitude is contrary to that which is required from an organ of state
within a constitutional democracy. Subsequent to the
hearing of this
matter, the South African Government, in the matter of
Castor
Semenya v International Association of Athletics Federations
(IAFF)
[39]
displayed the correct attitude, in my view. The constitutional rights
of the applicant in that matter was venerated in all respects.
This
same respect is needed when that obligation rests on the respondents
in this matter. What is absent from the respondents'
answer is any
recognition of their constitutionally enshrined obligation to
respect, protect, promote and fulfil the rights in
the Bill of
Rights, in particular where the applicable legislative framework
points in the opposite direction.
[163]
What is sought in this matter is a far cry from major physical
changes to the correctional centres in the country nor a change
to
the binary model to sex identity currently used in South Africa, i.e.
of male and female. This court is cognizant of the inherent
safety
risks in prisons and for that reason, the order that I make, will
attempt to balance the rights of both parties.
[164]
Now that it is clear what this case is not about, I find it necessary
to emphasise what this case is actually about. This
case is primarily
about equality. Not only equality, but it is also about dignity,
freedom of expression, dignified detention,
and the prohibition of
inhumane treatment or punishment. As a result, there are various
constitutional rights and duties at stake
in this matter, and in
addition, numerous international legal obligations. All these rights
and duties point towards granting some
relief to the applicant.
H.
ORDER
[164]
In the circumstances, I make the following order:
1.
It is declared that the first respondent's failure and
or refusal to allow the applicant to express her gender between March
2016
and June 2017 by-
1.1
Not allowing her to wear female underwear and make-up;
1.2
Ordering her to cut her hair; and
1.3
Refusing and/or failing to address her as a woman or
through the use of the female pronoun, constituted unfair
discrimination under
section 8 of the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000 ("PEPUDA")
and is therefore
unlawful and unconstitutional.
2.
The first respondent is ordered to remove from the
applicant's correctional services' record/file, all charges or
infractions that
were entered against her prior to the date of this
order, only relating to her expressing her gender identity.
3.
Clause 2.3(a) and (b) of the Standing Order on Personal
Hygiene is declared to be unlawful.
4.
The illegality of clause 2.3(a) and (b) should be cured
by striking out the word "underpants" and "panties"
and, in its place, reading in the words "gender appropriate
underwear".
5.
Respondents are ordered to issue the applicant (and
other transgender female prisoners) with female underwear and/or to
allow her
to wear such.
6.
It is declared that the fourth respondent's failure
and/or refusal to allow the applicant to express her gender by-
6.1.
Not allowing the applicant to wear female underwear,
make-up and jewellery; and
6.2.
Not
allowing the applicant to wear her hair long and in feminine styles;
and
6.3.
Refusing
to address the applicant as a woman, and through the use of the
female pronoun constitutes unfair discrimination under
s 8 of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000 ("PEPUDA"), and is therefore unlawful
and
unconstitutional.
7.
Until such time as the applicant has undergone gender
reassignment treatment, the respondents are directed to take
reasonable steps
to give effect to the applicant's constitutional
rights by considering one or a combination of the following options:
7.1.
The applicant remains in a single cell in a male prison
and is allowed to express her gender identity safely and securely in
line
with the amended (in terms of 4 above) Standing Orders on
Personal Hygiene by:
7.1.1
Returning to the applicant her female underwear,
make-up and jewellery, allowing her to use such in future and not
confiscating
such in future;
7.1.2
Allowing the applicant to wear her hair long and in
feminine styles;
7.1.3
Addressing the applicant as a women and using the
female pronoun; and
7.1.4
Directing all correctional service officials who are
employed under their authority to do the same.
Alternatively:
7.2.
The
applicant is transferred to a single cell at a female prison and is
allowed to express her gender identity safely and securely
in line
with the amended (in terms of 4 above) Standing Orders on Personal
Hygiene by:
7.2.1
Returning
to the applicant her female underwear, make-up and jewellery,
allowing her to use such in future and not confiscating
such in
future;
7.2.2
Allowing
the applicant to wear her hair long and in feminine styles;
7.2.3
Addressing the applicant as a woman and using the female
pronoun; and
7.2.4
Directing
all correctional service officials who are employed under their
authority to do the same.
8.
The respondents are ordered to introduce transgender
sensitivity training for all Department of Correctional Services'
employees
as part of the training of new employees, and a specific
course for current employees.
9.
The respondents are ordered to exercise the option in 7
above within 2 (two) months of this order.
10.
The training in 8 above is to be introduced within 12
(twelve) months of this order.
11.
No order as to costs.
_____________________
FORTUIN
J
[1]
S v Williams
[1995] ZACC 6
;
1995 (3) SA 632
(CC) at para 38.
[2]
Section 9(1).
[3]
Section 9(5).
[4]
Section 7(2): Director - General may supplement and rectify such
particulars in consultation with the person in question.
[5]
2017 (6) SA 588 (WCC).
[6]
2008 (1) SA 474 (CC).
[7]
Pillay at para 39.
[8]
Sec 1(a) of the Constitution of the RSA, 108 of 1996.
[9]
State v Makwanyane and Others 1995 (3) SA 391 (CC).
[10]
s v Williams, supra, at para 35
[11]
The ICESRC was signed on 3 October 1994 and ratified on 12 January
2015 by South Africa.
[12]
Principle 1.
[13]
Principle 2.
[14]
Principle 5.
[15]
Supra.
[16]
Supra, at footnote 22 in para 20.
[17]
2008(1) SA 474 (CC) at para 94.
[18]
City Council of Pretoria v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC) at para 113.
[19]
National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others
1999 (1) SA 6
(CC) at para 28;
Minister of Home Affairs and Another v Fourie and Another
[2005] ZACC 19
;
2006 (1)
SA 524
(CC) at para 71.
[20]
Supra.
[21]
MEC for Education: KwaZulu-Natal and Others v Pillay
[2007] ZACC 21
;
2008 (2) BCLR
99
(CC) at para 94.
[22]
2002 (4) SA 738 (C).
[23]
National Legal Services Authority v India WP (Civil) No 604 of 2013
at para 1.
[24]
NLSA v India at para 68.
[25]
Glenister v President of the Republic of South Africa and Others
2011 (3) SA 347
(CC) at para 202 ("Glenister").
[26]
Supra.
[27]
Supra, paras 34- 35.
[28]
Government of the Republic of South Africa and Others v Grootboom
and Others 2001 (1) SA 46
[29]
JE Mintz 'Treatment of Transgender Inmates - the Double Punishment'
(2013); McCauley, K Eckstrand, B Desta, B Bouvier, B Brockmann
L
Brinkley-Rubinstein 'Exploring Healthcare Experiences for
Incarcerated Individuals Who Identify as Transgender in a Southern
Jail' i2018) 3(1) Transgender Health 34 -41.
[30]
https://www.efe.com/efe/english/life/thai-transgendered-inmates-pilot-seperate-jail-cells-tostop-abuse/50000263-3216345;
https://www.nbcnews.com/feature/nbc-out/thailand
seperates-lgbtq-inmsates-considers-segregated-prison-n713741.
[31]
Lee v Minister of Correctional Services 2013 (2) SA 144 (CC)
[32]
National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others 1999 (1) SA 6
[33]
E Cameron, "Sexual Orientation and the Constitution: A test
Case for Human Rights"
(1993) 110 SALJ 450-472
[34]
Above at p458.
[35]
Supra.
[36]
Pillay above at para 72.
[37]
Pillay above at paras 75-78.
[38]
Pillay above at para 87.
[39]
CAS 2018/0/5794 and CAS 2018/0/5798.