By Johnathan Paoli
The Equality Court sitting at the Gauteng High Court in Johannesburg has reserved judgement in a landmark case that could reshape the treatment of transgender inmates across South Africa’s correctional system.
Represented by the Lawyers for Human Rights (LHR), Nthabiseng Mokoena, a transgender woman incarcerated at Johannesburg Correctional Centre, is seeking orders that would compel the Department of Correctional Services (DCS) and health authorities to recognise her gender identity and provide appropriate medical care.
LHR attorney Nyeleti Baloyi said the ruling will be delivered electronically, though no date has been set.
“This matter is of critical importance in advancing the rights of transgender individuals, particularly those in vulnerable positions within the correctional system. It has the potential to set a national precedent for the treatment of gender-diverse people in South African prisons,” Baloyi said.
Mokoena told the court she has been subjected to degrading treatment since her incarceration.
Among her grievances are being misgendered, verbally harassed, denied access to women’s clothing, cosmetics, and toiletries, and prevented from expressing her gender identity.
“The transphobia within DCS senior management is undeniable. There’s a clear difference in how heterosexual inmates are treated compared to members of the LGBTQI+ community. When we are hurt or attacked, no one speaks up. Those who harm the LGBTQI+ community are never held responsible. What is worse, when we try to defend ourselves or speak out about the unfair treatment, we are the ones who get punished,” she said in an affidavit.
Mokoena also claimed that despite medical recommendations, her requests for hormone treatment and other gender-affirming care were ignored.
She has asked the court to rule that the prison’s conduct constitutes unfair discrimination under the Promotion of Equality and Prevention of Unfair Discrimination Act and to declare it harassment.
Mokoena’s application seeks a series of directives, including: the recognition of her right to express her gender identity through clothing, cosmetics, and pronouns; orders compelling DCS to provide gender-affirming healthcare and assist with legal changes to her name and gender marker; accommodation in a single cell or with inmates of the same gender identity, in line with the department’s Standard Operating Procedures for managing LGBTQI+ inmates; and mandatory respect for her chosen pronouns (“she/her”) by all correctional officials, with the order applicable even if she is transferred to another facility.
She has further requested that prison authorities assist her with applications to change her names under the Births and Deaths Registration Act and facilitate gender marker amendments under the Alteration of Sex Description Act.
Correctional Services National Commissioner Makgothi Thobakgale, responding on behalf of the department and Minister Pieter Groenewald, opposed the application.
He argued that Mokoena was due for parole in July, suggesting that the matter may be moot.
Thobakgale denied that the department’s conduct was intended to demean or harass her.
He said Mokoena bypassed internal referral procedures for gender-affirming healthcare and “proceeded to self-medicate, which, given the potential complications, is dangerous.”
On her request for a single cell or accommodation with other transgender inmates, Thobakgale cited severe overcrowding at Sun City, adding that no other transgender prisoner was currently housed there.
While the department resisted much of the relief sought, the Health department took a softer stance.
Deputy Director-General Nicholas Crisp told the court that Minister Aaron Motsoaledi would abide by its ruling.
Crisp acknowledged that transgender inmates face well-documented difficulties, including misclassification, victimisation, and denial of gender expression. He noted that while gender-affirming treatment is available in public hospitals, waiting lists are long and resources limited.
The non-profit organisation Access Chapter 2 (AC2) was admitted as amicus curiae (friend of the court).
AC2 argued that gender-affirming care is not cosmetic but essential, life-saving treatment protected under Section 27 of the Constitution, which guarantees the right to primary healthcare.
“Public hospitals already provide hormone therapy, which should also be accessible in prisons. This case is not only about one individual; it is about affirming the dignity, equality, and healthcare rights of all transgender people in custody,” the organisation said.
It stressed that if the court rules in Mokoena’s favour, prisons will be compelled to provide gender-affirming medical care, respect chosen pronouns, and ensure that correctional staff are trained to prevent harassment and discrimination.
Mokoena’s case follows the precedent set in 2019 when transgender inmate Jade September won the right to express her gender identity at Pollsmoor Prison.
That ruling compelled the department to introduce transgender sensitivity training and respect pronouns, but rights groups say implementation has been inconsistent.
The Commission for Gender Equality raised concerns in a 2024 report, warning that while protective rules exist, their enforcement across prisons is “inconsistent and worrying.”
After hearing arguments on Friday, the Equality Court reserved judgment.
If Mokoena succeeds, many speculate the ruling could compel sweeping reforms in correctional policy and practice, bringing South Africa closer to fulfilling its constitutional obligations to dignity, equality, and healthcare for all.
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