Evaluating the right to primary healthcare of transgender inmates in South Africa

Abstract

The right to healthcare of inmates remains a grave problem in South Africa. This is due to limiting factors such as overcrowding, and physical violence. Because inmates are in correctional facilities, they are custodians of the State, and the State bears the duty to care for them in a manner that does not violate their constitutional rights. The Constitution, read with legislation such as the Correctional Services Act and the National Health Act contains provisions that protect the right to healthcare of all inmates. This right to healthcare extends to transgender inmates as well. Transgender inmates have the right to primary healthcare in terms of South African legislation, but this right is not adequately realised as it is threatened by structural, interpersonal, and individual barriers which limit access to healthcare. The International law framework, which includes the United Nations Standard Minimum Rules for the treatment of prisoners (Mandela Rules), the UN Basic Principles for the Treatment of Prisoners and the Yogyakarta Principles on the Application of International Human Rights law, sets minimum standards, that when read together, creates the right to primary healthcare for transgender inmates. South Africa, however, are yet to implement sufficient policies based on this international law framework. Despite domestic and international law safeguarding the right to primary healthcare of transgender inmates, there is a clear disjunction between the law and the reality within correctional facilities; such right to primary healthcare has not been adequately realised and fundamental change has not stemmed from legislation. This mini-thesis is therefore aimed at investigating what the primary healthcare needs of transgender inmates are and whether South African legislation, policies and case law adequately safeguard the right to primary healthcare of transgender inmates.