After filing the case in 2016, Jade September won her court case at the Equality Court in the Western Cape, South Africa, on 23 September 2019. Ms September alleged that she had suffered numerous discriminatory actions by staff at the men’s facility at the Helderstroom Prison in Caledon, Cape Town, South Africa. In her court application, Ms September said that she was forced to cut her hair and that

“the heads of Helderstroom and the Malmesbury correctional facilities had failed to allow her to express her gender identity by not allowing her to wear female underwear, jewellery or make-up.”

Following the Equality Court victory, Ms September’s lawyer, Sanja Bornman from the Gender Equality Programme at Lawyers for Human Rights, stated that the judgement set a precedent and that

“from now on, all prisons in South Africa must respect, protect, and promote the rights of transgender inmates. They cannot deny any trans person the right to express their gender identity, and they cannot force trans and gender non-binary inmates to behave or present in a way that conflicts with their identity. The judgment makes it clear that a person’s gender identity is part of their rights to equality, human dignity, and freedom of expression. If you deny a person the right to express their gender identity, you are violating those rights [and that her client, Ms September] is especially happy that this judgment is not only a win for her, but for many others like her stuck in a binary prison system, and trans people generally in South Africa whose existence and rights are ignored.”

The following press release was issued by the Legal Resources Centre, Gender DynamiX, Lawyers for Human Rights, the Triangle Project and Iranti:

“On Monday 23 September 2019, the Equality Court in the Western Cape handed down its judgment in the matter of September vs Subramoney N.O and Others. Ms. September is a transgender woman currently serving a prison sentence inside a male correctional facility. While incarcerated, prison officials denied her the right to express her gender through her hairstyle, dress, and use of small amounts of make-up. She has also been subject to verbal abuse and harassment from prison officials, and at one stage placed in segregated confinement after trying to express her gender.

Ms September sought relief from the Court for the violation of her fundamental constitutional rights to equality and human dignity, including an order that the respondents permit her to express her gender, and that her gender identity be respected and protected while incarcerated. Ms. September was represented by Lawyers for Human Rights, and her matter was heard on 26 and 27 November 2018. Gender Dynamix, represented by the Legal Resources Centre, were admitted as friends of the court.

We welcome and celebrate the judgment delivered by the Equality Court, which we believe is central to the promotion of the rights of transgender and gender diverse persons in South Africa. These classes of persons remain marginalised and ignored by the law and its application.

In a fundamental judgment, the Court held that refusal to allow a transgender person to express their gender identity is unfair discrimination that violates both the right to equality and section 8 of the Promotion of Equality and Prevention of Unfair Discrimination Act. The Court therefore ordered prison officials to allow Ms. September and others similarly placed to wear female underwear, keep her hair long and wear make-up, as well as address her as a woman and use female pronouns when referring to her. The Department of Correctional Services was also ordered to introduce transgender sensitivity training for current and new employees.

Critically, the Court reiterated that the incarceration of a person does not in any way excuse the State from fulfilling the obligation to respect, protect, promote and fulfil the rights of the applicants and others similarly placed. The Court emphasised the importance of the right to equality and how it links with the ability to express one’s gender identity. Further, the Court also correctly noted that Ms. September’s case was not just about equality, but also included the  rights to dignity, freedom of expression and dignified detention, among others. The court explained that the respect for dignity requires the recognition of and respect for the unique identity and expression of each individual. The right to dignity therefore includes the right to express one’s gender identity.

The Court highlighted the linkages of the right to equality and the right to freedom of expression. The Court found that Ms. September had been denied her personal freedom to develop and express her gender identity which violated her right to freedom of expression. The court stressed that the infringement of freedom of expression is particularly severe when it is connected to other rights.

Importantly, the Court recognised the applicability of the Yogyakarta Principles and Yogyakarta Principles Plus 10 to the South African human rights context, citing “the obligation on the State to ‘repeal any law that prohibits or criminalises the expression of gender identity, including through dress, speech or mannerisms, or that denies to individuals the opportunity to change their bodies as a means of expressing their gender identity‘” (Principle 6). The Court also emphasised the right to treatment with humanity while in detention (Principle 9), which says that the State must “ensure that placement in detention avoids further marginalising persons on the basis of sexual orientation or gender identity or subjecting them to risk of violence, ill-treatment or physical, mental or sexual abuse.”

We welcome this groundbreaking judgement as it is an important development of the South African jurisprudence on the rights to gender identity and gender expression, and a significant step towards greater protection and realisation of the human rights of transgender and gender diverse people in South Africa. We urge all government departments to take note of this judgement and ensure that their laws, policies and practices comply with human rights standards on gender recognition for transgender and gender diverse persons.”

In June 2017, a historic moment unfolded as 22 African intersex human rights defenders from 7 countries across the African continent convened in Kenya under the theme “Visibility… Voice… Freedom”, from the 24th to the 26th of June to establish the African Intersex Movement (AIM). The landmark initiative aimed at sharing information, skills and resources while advancing the rights and visibility of intersex individuals across Africa. The convention made a pivotal step forward by the African region collectively addressing unique challenges faced by the intersex community in the region and amplifying their voices on the global stage. 

Hosted in a spirit of solidarity and association, the formation of AIM brought together IHRDs and allies from across Africa including Kenya, Malawi, Uganda, Zimbabwe and Zambia. The convention created a platform to allow individual connections with fellow intersex activists in ways that fostered movement wellness, built trust and affirmed a collective vision for the change desired for the African intersex community. Activists shared their experiences, discussed common struggles, identified specific regional needs and structured a united front in advocating for dignity, equality and recognition for intersex persons.

The main theme of the convention was the recognition of intersex rights as human rights. Participants reaffirmed the principles enshrined in both the International and regional human rights instruments, including the Universal Declaration of Human Rights, the Yogyakarta Principles and the African Charter on Human and Peoples’ Rights, which affirm the right of intersex individuals to self-determination, bodily autonomy and non-discrimination. They also spoke about countries like Malta, Australia and Portugal, which have taken steps to legally protect intersex persons, as well as examining why Africa as a region and the different state parties have little or very close to no interest in legislating to protect their own intersex communities from the severe violations and abuses as reported by the activists.

Throughout the proceedings, speakers underscored the urgent need to challenge harmful practices such as infanticides, discrimination, non-consensual surgeries and ‘normalising’ interventions now more commonly referred to as Intersex Genital Mutilation (IGM) imposed on intersex children. These practices, rooted in stigma and ignorance, have long perpetuated violence and trauma against intersex individuals, often resulting in lifelong physical and psychological harm. Some of the widely highlighted challenges directly involved in intersex activism included the absurdly low funding of intersex organising in Africa and how the African governments continue to ignore the intersex communities in their countries, despite clear knowledge about their existence and the severe violations and abuses of the human rights of intersex individuals. Participants concurred that one of the most effective approaches to addressing these issues could be through improving messaging and outreaches, while utilising the National Human Rights Institutions which operate autonomously from the government but possess the capacity to exert influence upon it; a strategy that proved to work for the Kenyan activists. 

The convention also provided a platform for intersex activists to highlight the intersections of intersex identity with other forms of oppression, including child abuse, female genital mutilation, gender-based violence, discrimination and marginalisation. This intersectional approach is important to fully address all forms of oppression without dismantling a person’s identity into distinct dimensions that don’t affect one another. Discussions were therefore focused on the importance of building inclusive movements that centre the voices and experiences of intersex people, particularly those from marginalised communities whose oppression and discrimination is an inextricably blended experience. The diverse expressions will serve to challenge the prevailing narratives of shame and secrecy surrounding intersexuality and affirm the inherent dignity and worth of every individual.

The key outcomes of the convention were the election of a starring committee of the African Intersex Movement made up of four members, overseen by Julius Kaggwa and Hlompho Mokoena (formerly known as Nthabiseng) and a statement that was guided by the 2017 Statement from the first African intersex meeting in Johannesburg, South Africa. The genesis of the establishment of the AIM can be traced back to this meeting where ideas of the necessity were formalised by the participants.

The 2019 Statement, an outcome of the conference held in Naivasha, Kenya in 2019,  is a public statement to extend demands aiming to end discrimination against intersex people while ensuring their right to bodily autonomy and self-determination. This statement announced the launch of the African Intersex Movement offering themselves as the African intersex reference of intelligence for stakeholders and allies who are interested in strengthening the ongoing liberation work for intersex people’s rights and autonomy.  The statement demands a wide range of rights including legal recognition, access to healthcare, employment, education and sport, marriage, bodily autonomy, information, especially to medical records and surroundings, inclusion and, mainly, the right to life. It also calls upon community leaders, human rights organisations and resource partners to support the African intersex people.

Key to the convention’s success was the active participation and leadership of the pioneers of intersex activism in Africa whose first-hand experiences provided invaluable insights and drove the agenda for change. Their courage in sharing their activism stories of resilience, survival, and self-affirmation served as a powerful catalyst for collective action among attendees.

The formation of the African Intersex Movement was a critical milestone in the ongoing struggle intersex rights and recognition. The movement stands as a testament to the power of collective action. Recognising the need to promote unity, solidarity and cooperation among African nations was the first step towards wider visibility and long-term impact. The movement has grown to have an impressive coverage of all the African regions and as it continues to gain momentum and evolve. Its members remain steadfast in their commitment to challenging oppression, fostering solidarity, and creating a world where all intersex persons can live authentically and without fear. Read more about AIM.

The Movement amplifies intersex voices and affirms to the world that, in all African Countries: WE EXIST.