On 12 September 2025, the Johannesburg High Court, sitting as the Equality Court, heard a trailblazing case that could redefine the rights of transgender prisoners in South Africa.
Lawyers for Human Rights (LHR) represented Nthabiseng Mokoena, a transgender woman incarcerated at the Johannesburg Correctional Centre, who has taken legal action against the Department of Correctional Services (DCS), the Minister of Correctional Services, and other officials. She argues that their conduct has violated her constitutional rights to dignity, equality, and freedom from unfair discrimination.
Mokoena’s application details a pattern of systemic discrimination, including the refusal to use her chosen name and pronouns, denial of gender expression through withholding clothing and cosmetics, verbal harassment, and the withholding of gender-affirming healthcare.
She is also seeking a court directive to ensure her safety, including being housed in a single cell or with inmates who share her gender identity, in line with existing DCS Standard Operating Procedures.
“The transphobia within DCS senior management is undeniable,” Mokoena told the court. “There’s a clear difference in how heterosexual inmates are treated compared to members of the LGBTQI+ community. The LGBTQI+ community is often treated as less than human. When we are hurt or attacked, no one speaks up or does anything to help.
She added that, “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.”
Why the Equality Court?
MambaOnline spoke to Nyeleti Baloyi, Attorney at LHR, about why the matter is being heard in the Equality Court.
“It is a direct challenge to alleged unfair discrimination and harassment, which fall under the jurisdiction of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA),” Baloyi explained.
“The primary goal is to secure a court order that recognises and remedies the violations of Ms. Mokoena’s rights. We want the court to declare that DCS’s actions, such as refusing to use the correct pronouns and preventing Ms. Mokoena from expressing her gender identity, are a form of unfair discrimination and are therefore unlawful and unconstitutional.”
Baloyi emphasised that the case goes beyond one individual’s struggle. “This case has the potential to establish a powerful and binding legal precedent for the rights of transgender people, particularly those in vulnerable circumstances. A favourable ruling would not only uphold Ms. Mokoena’s personal rights but also promote broader, systemic respect for the inherent dignity of all transgender prisoners.”
A Systemic Problem
Baloyi noted that while the scale of discrimination against transgender prisoners in South Africa remains difficult to quantify, similar cases like September v Subramoney NO and Others (2019) show that violations are not isolated incidents but reflect systemic failures within the correctional system.
“The DCS often does not take complaints about transgender prisoners’ rights seriously,” Baloyi said. “It has been the consistent experience that these complaints are ignored, and little to no action is taken. This lack of response perpetuates an environment where discrimination and harassment are allowed to continue unchecked.”
Beyond One Case
If successful, Mokoena’s case could reshape the rights of transgender inmates nationwide. A ruling in her favour would compel the DCS to recognise gender-affirming healthcare as a medical necessity, not a luxury, and legally obligate the department to respect prisoners’ pronouns, gender expression, and safety.
“This case would move the legal framework from a position where transgender prisoners constantly have to fight for their basic rights to one where the state is legally obligated to protect and fulfil them,” Baloyi said.
Waiting for Judgment
The matter was concluded on 12 September, with all parties making their submissions. Mokoena was also afforded the opportunity to speak directly to the court about her experiences. Judgment has been reserved and will be delivered electronically, although the timeline remains uncertain.
For Mokoena and for many transgender South Africans, the Equality Court’s decision could mark a historic step towards recognition, safety, and dignity within the correctional system.
