Inmate wants right to dress up

LAWYERS representing transgender prisoner Jade September will head to the Constitutional Court should her bid to dress and appear like a woman falls short in the Western Cape High Court. September is serving a 15-year sentence at the Helderstroom Prison since 2013 for the murder of Graham Flax.

September, who was a transgender sex worker at the time, said Flax had been a regular client and refused to pay for services, leading to an altercation and eventually Flax’s death.

September is taking on the Department of Correctional Services in a bid to allow her to dress like a woman, wear her hair the way she chooses and wear female underwear.

Lawyers for Human Rights attorney Sanja Bornman says September’s case is the first of its kind in South Africa.

The department, in its filing affidavit, states that at present the system only allows for men and women to dress in a certain way.

The court heard that September was being kept in “segregation” for wearing make-up.

She also accused officials at Helderstroom of “rude” and “aggressive” behaviour.

Lawyers for the department questioned the authority of the court to rule on this matter, saying the court should refer the case back to the department for review.

It is also argued that September’s “segregation” was a purely administrative issue.

The department argues further that “rude” and “aggressive” behaviour against September cannot be seen as unfair discrimination.

Bornman, meanwhile, argues the department’s refusal to allow September to be her “true self” flies in the face of her constitutional rights to freely express who she is.

“We no longer live in a world of just men and women. The system needs to accommodate trans people so that there is justice for everyone.”

Bornman says while September is “okay” now, she is anxious about the case and has suffered abuse from prison officials in the past.

Constitutional law expert Professor Pierre de Vos believes September has a case to argue.

“While the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act do not explicitly prohibit unfair discrimination based on gender identity, they do allow courts to find that there is discrimination on grounds that are similar to those listed. This is such a case,” he said.

He says where discrimination occurs on the “analogous” ground of gender identity, transgender individuals are a vulnerable group and the impact of the discrimination on September will be severe.

Department spokesperson Simphiwe Xako declined to comment on the case, saying the matter was sub judice.