Groundbreaking victory for transgender inmate at Sun City Prison

A transgender inmate has won a groundbreaking Equality Court ruling in Johannesburg, affirming her legal right to receive hormone therapy provided by the State.

Judge Denise Fisher found that the failure to provide gender-affirming health care to the transgender inmate constitutes unfair discrimination and harassment. This also includes the refusal by correctional services to allow her to wear feminising clothing, accessories, cosmetics and toiletries, as well as the department’s failure to use her chosen pronouns.

Under the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUA), Nthabiseng Mokoena, a transgender prisoner serving a life sentence at Johannesburg’s “Sun City” Prison, approached the Equality Court saying that she is being subjected to harassment and discrimination at the hands of the State and particularly correctional services.

She complained that the authorities unfairly discriminated against her in not allowing her to wear her female clothes in prison and for refusing her to use cosmetics. She also wants to be addressed as a female and for the officials to use the pronoun her/she in addressing her, and she wants to be accommodated in a single cell or a cell with inmates of the same gender identity as herself.

She has been in jail since 2013, and she is held in a section of the prison for persons with special needs. In painting her background, she said that at 17, she started exploring her sexual identity and started wearing women’s clothing.

Mokoena was diagnosed with gender dysphoria in March 2021, and multiple expert assessments confirmed this diagnosis. She has, thus, been prescribed gender-affirming health care which includes that she receives hormone therapy. However, correctional services have refused to provide this treatment, arguing that it constitutes cosmetic surgery.

Out of desperation, she began self-medicating with oral contraceptives to simulate oestrogen effects. This has resulted in some physical changes, but she expresses a strong desire for surgical transition, including breast augmentation and genital surgery in due course.

The department argued it is only obliged to provide primary health care at State expense and that gender-affirming hormone therapy should come out of her own pocket. The department also argued that it is entitled to place restrictions on where Mokoena is entitled to wear gender-affirming attire and make-up. This, it said, is for security reasons.

Judge Fisher pointed out that the department provides no details as to what the security concerns entail or how they can be alleviated. “It is difficult to conceive of any dangers which are not taken account of on the basis that the applicant and other inmates are properly supervised whilst outside of their sections,” the judge said.

She found the department violated Mokoena’s rights by denying her gender expression and the health care she asked for. The judge ordered that Mokoena has full access to gender-affirming clothing, hormone therapy and housing that matches her gender identity.

IOL