Abstract
Human rights abuses against transgender people in correctional facilities have become an international crisis. In South Africa and around the world, transgender people in correctional facilities frequently face systemic difficulties that lead to egregious human rights violations, including sexual abuse, harassment, transphobia, sexually transmitted diseases, and the lack of provision of gender-affirming health care services. This is often due to discriminatory laws, policies, and procedures in many countries and harmful practices by states and their institutions. Throughout the course of their sentences, people who have committed serious crimes are housed in correctional facilities, which are institutions of the criminal justice system. These institutions are designed to rehabilitate inmates and prepare them for reintegration into society. As a result, they are instituted for reform rather than punishment. Notwithstanding their purpose, correctional facilities often cause more harm than good to transgender people. This dissertation focuses on factors contributing to and exacerbating the marginalisation of transgender people in South African correctional facilities. The present South African legislative position restricts the provision of gender-affirming health care on the account that it is cosmetic in nature. It will look in detail at the right of transgender people to access gender-affirming health care in South African correctional facilities with a focus on constitutional rights. It will argue that the right to access gender-affirming health care for transgender prisoners is not cosmetic in nature and already exists in the Constitution of the Republic of South Africa. This dissertation will assess the shortcomings relating to the laws, policies, and procedures within correctional facilities in South Africa and analyse how the state’s failure to guarantee transgender prisoners’ access to gender-affirming health care represents a violation of their fundamental human rights. This dissertation will conclude with recommendations for aligning the law, policies, procedures, and practices with fundamental human rights, and the Constitution more broadly ensuring that correctional facilities realise their purpose without violating the rights of transgender people.