Trans pris­oner looks to Concourt

Weekend Argus (Saturday Edition) - - METRO - NOR­MAN CLOETE

LAWYERS rep­re­sent­ing trans­gen­der pris­oner Jade Septem­ber say they will head to the Con­sti­tu­tional Court should her bid to dress and ap­pear like a woman fall short in the West­ern Cape High Court.

Septem­ber has been serv­ing a 15-year sen­tence at Helder­stroom Prison since 2013, for the mur­der of Gra­ham Flax. Septem­ber, 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 make-up and fe­male un­der­wear.

The case has at­tracted in­ter­na­tional me­dia at­ten­tion.

Lawyers for Hu­man Rights at­tor­ney Sanja Born­man says while there are other cases around the world of this na­ture, Septem­ber’s is the first of its kind in South Africa.

The Depart­ment of Cor­rec­tional Ser­vices, in its fil­ing af­fi­davit in court, said at present the sys­tem al­lows only for men and women to dress in a cer­tain way.

The court heard that Septem­ber is be­ing kept in “seg­re­ga­tion” for her re­fusal to stop wear­ing make-up.

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

Lawyers for Cor­rec­tional Ser­vices also ques­tioned the au­thor­ity of the court to rule say­ing it should re­fer the case back to the depart­ment for re­view.

It is also ar­gued that Septem­ber’s be­ing placed in “seg­re­ga­tion” is purely ad­min­is­tra­tive.

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

Not good enough, says Born­man, who 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 at the hands of prison of­fi­cials in the past.

Con­sti­tu­tional law ex­pert Pro­fes­sor Pierre de Vos said 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 there is dis­crim­i­na­tion on grounds that are sim­i­lar to those listed. This is such a case.”

De Vos said 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.

“While our courts have not ruled on this be­fore, I would ar­gue that the depart­ment’s rea­sons for the dis­crim­i­na­tion are not com­pelling and that there is there­fore un­fair dis­crim­i­na­tion in this case,” he said.

Septem­ber’s bid is sup­ported by Gen­der Dy­nam­ics, Tri­an­gle Projects, Iranti Org, Sis­taz­hood, trans­gen­der sex­work­ers who form part of SWEAT and pri­vate in­di­vid­u­als.

Depart­ment of Cor­rec­tional Ser­vices spokesper­son Simphiwe Xako de­clined to com­ment on the case, say­ing the mat­ter is sub ju­dice.


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