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19 Jul 2019 00:00
According to Sanja Bornman, an attorney for Lawyers for Human Rights, many trans people are in prisons that do not match their gender identity, in South Africa and globally. (John McCann/M&G)
Bras, panties and hairpieces are some of the items Akhona Tasha Gumbi had ready to take into the Sun City male prison facility for her year-long sentence — these were the things that would help her feel like herself. Like many other trans people in prison, she was unprepared for the daily harassment by warders who are supported by discriminatory policies that refuse to recognise people’s chosen identities.
Gumbi was charged with theft last year and sentenced to 12 months in prison.
Because her ID states she is male, she was incarcerated in a male prison.
According to Sanja Bornman, an attorney for Lawyers for Human Rights, many trans people are in prisons that do not match their gender identity, in South Africa and globally.
“The prison system does not pay any attention to how a person identifies. Where you are incarcerated depends purely on the gender marker in your ID. Our IDs, like our prison system, are binary — only ‘male’ or ‘female’,” Bornman said. “The prison system uses this as an excuse for forcing inmates like Akhona, whose IDs mark them as ‘male’, to ‘look’ and ‘act’ like men. But they forget about the basic constitutional right to substantive equality, and their positive duties under the Equality Act. The rights, and the very existence of trans and gender-diverse inmates, are simply being ignored.”
Gumbi’s troubles began in November last year, 21 days after her incarceration. She said she had initially been allowed to keep her “outside clothes” with her because of a lack of prison uniform. She said she felt comfortable in prison at first, but this changed on the evening her cell was raided by two warders, who confiscated her personal items, including the clothes she was wearing, leaving her naked. She had to wait till morning to borrow the prison uniform from other inmates, she said.
“It wasn’t just that they took my stuff; the guard told me I had to ‘man up’. They even took the nightgown I had been wearing. I was left naked and had to borrow clothes from other people here,” Gumbi said in an interview at the Johannesburg Prison, commonly referred to as Sun City.
Because of the harassment she faced, and her inability to freely express her gender, Gumbi’s mental health deteriorated. When she laid a complaint with prison officials, she was sent to a psychologist, who closed her case after saying the items she brought to prison were “in breach of security”.
“I began to have panic attacks. I have not experienced such emotional distress since the death of my mother. I cried for three days. This was bad, bad, bad,” she said.
Two other major incidents took place where she was harassed and threatened by warders. On the prison’s family day in April, she was told she would not be allowed to see her family until she removed her bonded weave because it was a “disguise”. And in June she was not allowed to attend a church service because she was “dressed like a woman”.
Gumbi said the harassment had led her to become suicidal. “How can authority with so much power not listen to people under you? No one is taking my complaints seriously.”
Trans people are often subjected to discrimination in prison facilities, according to Bornman, because the laws and policies directly applicable to prisons do not take the existence of trans people in the system into consideration
She said that, in accordance with the equality clause in the Constitution, expressing one’s gender identity is a basic human right. The Constitution also requires substantive equality, meaning equality in outcomes.
“This requires prison officials to reasonably accommodate trans inmates by, for instance, using an inmate’s preferred pronouns, and allowing certain personal items that assist an inmate to express their gender identity. This costs them and the state nothing, and would create an environment in which all inmates, in their gender diversity, can express their identity in the same way that cisgender inmates.”
The department of correctional services spokesperson, Chrispin Phiri, said the department was concerned about the allegation of Gumbi being harassed by warders.
He said its initial report showed she did receive a uniform in November but could not confirm exactly when, and added that the department would investigate the allegation that Gumbi had been forced to borrow prison uniforms from other inmates.
Phiri went on to say that the department “continues to sensitise its officials around protecting and securing human rights of LGBTI inmates” but could not specify any programmes run by the department.
He said the department took precautions by placing LGBTI inmates in separate cells from the communal block to “minimise the risk of being taken advantage of by other inmates”. Phiri said that, despite these protocols, it was evident that more needed to be done to preserve the dignity of any inmate.
Gumbi is not the first trans woman incarcerated in a male prison facility to fight to express her gender identity. Jade September, a trans woman, faces a similar set of circumstances: she has brought a case against the department of justice and correctional services through which she seeks to be allowed to freely express her gender identity in a male prison facility. The judgment was reserved in December.
Constitutional law expert Pierre de Vos said there is still a disconnect between constitutional rights and the way people such as Gumbi and September are treated, not only in prisons but in South African society, as well as in many parts of the world, because of the attitudes of people in positions of power.
“Unfortunately, the law does not automatically change the attitude of those who make and implement the rules of an institution. Because many officials are transphobic or, at best, completely ignorant about transgender people, this prejudice or ignorance is reflected in how transgender people are treated. It is, therefore, not surprising that it often requires someone to go to court to get officials to comply with the Equality Act,” De Vos said.
Bornman said the answer to preventing harassment of Gumbi by prison officials or inmates was not necessarily for her to be transferred to a women’s prison. Depending on Gumbi’s individual circumstances and manner of expression, suddenly moving her to a women’s prison might exacerbate her vulnerability to victimisation and violence.
She said although it is sometimes ineffective, trans inmates must persist in laying internal complaints with prison officers. This, at the very least, creates a paper trail of what actually happens to them. Inmates should also reach out to organisations such as Lawyers for Human Rights and other public interest law organisations for assistance if they are experiencing victimisation, discrimination or violence on the basis of their gender identity.
“Gender identity is a spectrum, and is deeply personal. Every trans person is different, and chooses a different combination of gender-affirming healthcare, services and social transitioning — depending on what is right for them,” Bornman said.
“Many people have no access to gender-affirming healthcare, much less the very fraught ID change process. The financial cost, geographical accessibility and availability of these services often prove prohibitive for most trans people in South Africa.”
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