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Transgender Prisoner Jade September Fights for Her Right to Express Her Identity

Punish her crime, not her identity. 

Jade September is a transgender woman and survival sex worker fighting for her rights in a men’s prison. On Monday, she took the Department of Justice and Correctional Services to the Cape High Court for denying her right to express her gender in prison. She and her legal team are accusing prison heads of discriminating against her based on her gender identity through various means, including solitary confinement. She is currently serving 15 years in a mens’ prison in South Africa for murdering one of her clients in 2013.

What happens if you’re imprisoned as a transperson today? The system doesn’t seem to have a place for you, especially if you do not have the money and access for gender reassignment surgery, hormone treatment and ID document changes. Hopefully, this case will change that. Trans rights are human rights, regardless of where.

What it’s like for Jade September in prison

‘This is who I am and not you, or the area manager, or the Minister of Correctional Services can change that.’ This is what Jade September said when prison officials confiscated her makeup, referred to her as a man and detained her in solitary confinement.

Jade September’s body and life has existed at the margins of class and of gender. She is now at the mercy of a binary state system that separates prisoners into ‘womens’ and ‘mens’ facilities. Despite being a transwoman, she was legally tried and imprisoned as a man. Like many transgender South Africans, Jade September did not have the opportunity to change the gender marker in her ID. She never had access to gender-affirming health care.

Represented by Lawyers for Human Rights, she wants the Equality Court to stop prison officials from forcing her to cut her hair and to dress and present as a man. She wants her confiscated make-up and female underwear to be returned. She mentions that prison staff refused to treat her as a woman and deliberately address her as ‘him’ and ‘he’.

Jade has been punished with solitary confinement for expressing her gender identity. She continues to be threatened with further solitary confinement and having her privileges taken away for presenting as female. Her mistreatment has damaged her mental health, and in December 2017, Jade attempted suicide in prison.

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What the prison authorities say: she is in a male prison and will be treated as a man

In a statement to IOL, Subramoney (the head of Helderstroom Maximum Correctional Centre) has argued that allowing Jade September to express herself as a woman would place her at risk because she is in a prison full of men. As IOL reports, the stance of the correctional centre is ‘that September was sentenced as a man and until the court ordered otherwise, they will treat her as such’.

 

However, Jade’s lawyers argue that the officials have not been able to provide any evidence for this claim. Jade says that the officials are the ones who harass and verbally abuse her, while her fellow inmates are largely indifferent.

Ms September says in her court papers: ‘I am not a gay man. I am a transgender woman.’ She says her treatment has caused her ‘to feel extremely demeaned’. She explains that her gender identity ‘goes to the core‚ and is the essence of who I consider myself to be as a human being’.

This week she fought for her constitutional right to equality and human dignity, including the right to have her gender identity respected while she is incarcerated. This includes being called by the correct pronouns, being able to express herself as a woman, and not being discriminated against and punished for this expression.

The LGBTQIA community supported her case outside the court on Monday and Tuesday. Greyson Thela of Gender Dynamix (National Advocacy Officer) explains outside the Cape High Court:

So would a women’s prison facility be better? It’s more complicated than that

Jade is not fighting to be transferred to a women’s prison. Despite trying to secure medical treatment for her transition, September has not had access to gender-affirming health care and, lawyer Sanja Bornman argues, ‘She is likely to stand out even more and be at greater risk of victimisation and violence in a women’s prison… It is the duty of state to accommodate her where she currently is… as far as prison laws and policies are concerned, transgender people simply do not exist. This is unacceptable.’

The problem is that transgender people are not catered for in the prison system at all, and this is what her legal team is challenging. This is why the Minister of Justice is included as a respondent in the court documents, not only the heads of the mens’ prisons she has been in. The case is to compel the Departments of Justice and Correctional Services to allow her to present as a woman even though she is in a men’s prison. Lawyers for Human Rights (LHR) argued that she’s been discriminated against for expressing her gender contrary to the Promotion of Equality and Unfair Discrimination Act 4 of 2000.

Why Jade September’s case is so important 

Jade’s case could revolutionize how trans prisoners are treated in South Africa. ‘It is also time for the state to realise that none of its systems and services may exclude or discriminate against transgender and gender non-conforming people any longer,’ says Sonja Bornman. If the case can show that the discrimination she is experiencing is unlawful, the Department of Justice will have to put in place measures to protect her from unfair treatment. This could set a precedent for other prisoners like Jade.

Jade September is a member of Sistaaz’ Hood, a support group for transgender women in Cape Town, which is a housed at SWEAT. Sistaaz’ Hood serves transwomen who are homeless and those who trade in sex. ‘We work from an intersectional feminist perspective wherein we have a deep understanding of how poverty fuels the multiple layers of challenges the black transgender women in the group have. Most of us have been imprisoned and understand full well the complexity of our position in the prison system,’ says Davids from the movement.

Sistaaz’ Hood and other supporters stood in solidarity with Jade and raised their voices for trans rights. As we await the outcome of this potentially groundbreaking case, the Lawyers for Human Rights are ‘cautiously optimistic’.

This case cuts to the heart of a class issue: gender reassignment surgery is not affordable for many. This does not, however, justify discrimination. While Jade may not have the access or resources to transition surgically, she is no less a transwoman. Punish her crime, not her identity.

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