High court affirms rights of transgender inmates in landmark ruling

The National Preventive Mechanism of South Africa says it welcomes a recent judgment by the Gauteng Division of the High Court, Johannesburg, in the case of Nthabiseng Beverly Mokoena v Head of Johannesburg Correctional Centre and Others, delivered on 10 November 2025.

The NPM is the body designated under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, known as OPCAT. The South African Human Rights Commission was formally appointed as the NPM on 4 December 2024.

Its mandate is to monitor all places where people may be deprived of their liberty, including police stations, correctional centres, secure care centres, and psychiatric institutions. Regular independent visits are meant to prevent abuse, torture, and ill-treatment, as these facilities often operate away from public scrutiny.

Mokoena, who was assigned male at birth, identified as female from early childhood and has lived as a woman for most of her life. While she was initially allowed to express her gender identity, she was later restricted from wearing feminine clothing and makeup, misgendered by officials, and denied prescribed gender-affirming hormone therapy. The Department of Correctional Services argued that this treatment was cosmetic and did not fall under primary health care obligations.

In response, Mokoena filed a complaint under the Promotion of Equality and Prevention of Unfair Discrimination Act. She sought an order to compel the Department to provide gender-affirming hormone therapy at state expense, permission to wear clothing and accessories expressing her gender identity, recognition of her gender including use of she and her pronouns, accommodation in a single cell or with other transgender inmates, and assistance with legal gender and name changes.

The High Court was asked to decide whether the DCS’s treatment of Mokoena amounted to unfair discrimination and harassment under the Act and whether the State’s duty to provide adequate medical care includes gender-affirming hormone therapy for transgender inmates.

In its ruling, the Court found that the Department has a constitutional and statutory duty to respect the dignity, identity, and health of people deprived of liberty, including transgender persons. It confirmed that gender-affirming healthcare is part of the right to adequate medical treatment under the Constitution. The ruling represents a significant step in promoting equality and protection against cruel, inhuman, or degrading treatment in correctional facilities.

The NPM commended Mokoena for asserting her rights and highlighted the Court’s directives. These include ensuring that her accommodation and treatment in correctional facilities reflect her gender identity, providing prescribed hormone therapy and related medical care at state expense, and ending discriminatory practices such as misgendering and denial of access to gender-affirming clothing or toiletries.

The ruling is consistent with South Africa’s obligations under international and regional human rights instruments, including OPCAT, the African Charter on Human and Peoples’ Rights, the UN Standard Minimum Rules for the Treatment of Prisoners, and the Yogyakarta Principles.

The NPM will engage with the DCS to implement the Court’s order, monitor detention conditions for inclusivity and non-discrimination, and report on progress in integrating gender-sensitive and rights-based standards in custodial settings.

The NPM said that human dignity is indivisible and protecting the dignity of one person strengthens the protection of all.