Primary healthcare” behind bars : gender-affirming care under the Correctional Services Act after Mokoena

Abstract

The South African Constitution guarantees everyone the right to dignity, equality, and access to healthcare. Yet, the reality for incarcerated transgender persons reveals a stark disconnect between constitutional promises and prison practices. This article examines the right to seek gender-affirming healthcare while in custody, analyzing it within the legal framework of the Correctional Services Act, the Constitution, and relevant case law. Building on the cases of September v. Subramoney N.O. and Others and the 2025 judgment of Mokoena v. Head of Johannesburg Correctional Centre: Medium B and Others, the article shows how denying gender-affirming care may amount to discrimination, undermine dignity, and possibly breach the state’s duty of providing equivalent care. However, does gender-affirming care constitute ‘primary healthcare’ under Section 27 of the Correctional Services Act? If a balancing exercise is to be conducted, two opposing arguments clearly emerge: because prisoners cannot seek alternatives, the threshold of state obligation is higher in prisons. Providing care that is not available to the general public may be constitutionally permissible. Conversely, the counterargument is that the state should provide what is reasonably available to the general public as ‘primary care’, and since gender-affirming treatment is not always accessible to non-incarcerated citizens, there may be no basis to demand it for the incarcerated.