The Department of Correctional Services was found to have acted in a discriminatory manner and against the Constitution by not allowing Jade September to express herself as a trans woman in a men's jail, the Western Cape High Court ruled yesterday.

'The respondents have failed in their duty to accommodate the applicant reasonably,' ruled Judge Chantal Fortuin, according to News24.

Fortuin said just because September was incarcerated did not mean she lost her constitutionally enshrined rights. She is serving a 15-year sentence for the murder of Graham Flax in Sea Point in 2013. The judge said the way September had been treated violated her constitutional rights to freedom of expression and dignity.

In an application brought against the department by Lawyers for Human Rights, the court heard that September never had the chance to change her gender marker in her ID, nor did she have access to gender-affirming health care, and was imprisoned as a man.

As a result, prison officials denied her the right to express her gender through her hairstyle, dress, and use of small amounts of make-up. September was subjected to verbal abuse and harassment from prison officials, and at one stage placed in segregated confinement after trying to express her gender.

Fortuin ordered that:

* The department must introduce gender-sensitivity training for all new and existing officials within 12 months.

* Its failure to let September wear female underwear or use the female pronoun ‘constitutes unfair discrimination and is therefore unlawful and unconstitutional’.

* The department must remove from September's prison file any record of charges or infractions relating to her expressing her gender identity. The standing order on personal hygiene was declared unlawful.

* The words ‘underpants’ and ‘panties’ must be struck out of prison dress rules and must be replaced with ‘gender appropriate underwear’.

* Not allowing her to wear female underwear, long hair, jewellery, and refusing to use the female pronoun is discriminatory and unconstitutional.

* Until such time as she gets reassignment, the department must take September to either a single cell in middle prison and allow her to express her identity. Officials must also return her confiscated jewellery and cosmetics and must address her by the female pronoun as well as direct all officials to do so. This decision must be made in two months.

There was no order as to costs.

Full News24 report