Transgender Rights in African Confinement: An analysis of recent jurisprudence in Southern Africa

Abstract

Recent decisions in the courts of Zimbabwe and South Africa have brought awareness of the challenges faced by trans persons in custodial settings in the region. Through the juridical examination of court cases, this chapter analyses the experiences of two trans women who had their human rights violated while detained and sought reparation through the juridical system. Their judicial victories demonstrate how although Zimbabwean and South African state and society may have very different approaches towards transgender persons, their judicial systems converge in recognising the violence trans persons face in custodial settings. Although Zimbabwe’s legal framework excludes trans persons, in a ground-breaking judgement its High Court ruled that Rikki Nathanson had the right to reparation for the cruel and degrading treatment she was subjected to while detained by police forces. In South Africa, where the legal system respects the human rights of gender minorities, the court found that Jade September’s incarceration in a prison for men constituted unfair discrimination. By dissecting these rulings, the chapter offers a glimpse of the specific challenges trans persons face while in confinement in these states and explores the contribution of both instances of case law to trans people’s rights in custodial settings in Southern Africa.