A transgender prisoner, serving life at Johannesburg Correction Centre, has won the legal right for state provided hormonal therapy, reports GroundUp.

The Equality Court ruled that ‘adequate healthcare’, which must be provided to all prisoners in terms of law, now includes this treatment.

Judge Denise Fisher wrote that transgender prisoners are entitled to access a greater standard of healthcare for their condition – gender dysphoria – than that to which other transgender persons outside of a prison environment are entitled.

Fisher also ruled that Nthabiseng Mokoena was entitled to express her gender identity, including the use of pronouns ‘she/her’ and to be housed in a single cell or in a cell with other transgender prisoners.

Mokoena was born a biological male but began expressing female identity at age seven.

She was sentenced to life imprisonment for murder and robbery committed in 2010.

In her application, brought under the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act, she complained that while incarcerated, her rights had been violated because she had been denied hormonal therapy.

In addition, she had been subjected to unfair discrimination and harassment.

She further complained that she was not allowed to wear ‘feminising clothing’, to use her chosen pronouns, and was not being accommodated in a single cell.

In her ruling handed down on Monday, Fisher said the medical relief Mokoena sought was relatively modest, only confined to the hormonal therapy, prescribed by doctors in 2021 after she was diagnosed.

But the department refused, according to GroundUp.

Opposing the application, the Department of Correctional Services said it had dealt with Mokoena’s complaints, conducted an investigation, and taken steps to remedy the infractions found.

But the department said it was only obliged to provide primary health care at state expense and that gender affirming healthcare must be sourced at Makoena’s expense.

Fisher said Makoena had established that because of her transgender status, she had been subjected to systematic disadvantage undermining her rights and freedoms.

Withholding gender affirming healthcare amounted to unfair discrimination, the judge said.

Full GroundUp report

Judgment