Progressive transgender ruling will help tackle prejudice

The soon-to-be-heard Equality Court case being brought against the Departments of Justice and Correctional Services by Jade September could become a ‘ground-breaking case on transgender rights’. The court ‘is bound to confirm’ that our law prohibits unfair discrimination against transgender persons, says constitutional law expert Professor Pierre de Vos. In an analysis on his Constitutionally Speaking blog, he notes at the time when the equality clause in the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act were drafted, the plight of transgender persons was ignored – despite the fact that they are one of the most marginalised and discriminated groups in our society. De Vos notes that September is a prisoner at the Helderstroom Maximum Correctional Centre in Caledon. She wants the court to compel the departments to allow her to dress as a woman, even though she is in a male prison. The court, he says, will be asked to consider whether the departments unfairly discriminated against September. De Vos notes that the Constitution and the Act prohibit unfair discrimination on any ground, including on a long list of specifically mentioned grounds – race, sex, gender, sexual orientation and religion. This is not a closed list, he says, and courts can recognise new grounds on which discrimination can occur. In Hoffmann v South African Airways, for example, the Constitutional Court recognised that discrimination could occur on the ground of HIV status. De Vos says the same type of reasoning could be applied with regards to discrimination against transgender people. However, he sounds a warning: ‘Even if the court does hand down a progressive judgment protecting the rights of transgender persons, this will not end the deeply entrenched prejudice in society against transgender persons.’ But, he says, ‘it may create a legal precedent that could be used in future cases to challenge the various forms of unfair discrimination that transgender South Africans are subjected to’.