I’m trans but – sorry, Germany – no one should go to jail for misgendering

As Berlin introduces pro-trans laws that will make deadnaming an offence punishable with prison or a €10,000 fine, barrister Robin Moira White says it will only make life harder for people like her

Germany has, at long last, joined the growing list of 17 countries that allow citizens to self-identify their gender. Congratulations… but, seriously, what took you so long?

Perhaps it’s because not everybody is thrilled about it – truth be told, me included.

Under the new Self-Determination Act, which takes effect from 1 November, transgender, intersex and non-binary people are able to modify their legal documents at civil registry offices without any bureaucratic hurdles.

It will permit a person to change their entry in the country’s civil status register between female, male, “diverse” and “no-gender”, without having to provide evidence of a medical diagnosis of gender dysphoria.

Among its many, far-reaching provisions, the act will also impose hefty fines, or even jail those who intentionally misgender or deadname (using someone’s prior name). Which is where this superannuated Self-ID legislation and I must part company.

As a trans woman, I wholeheartedly believe in Self-ID – the ability to decide and declare your gender, and to be believed. Ahead of the law coming in, some 15,000 applications for gender changes were received in August alone.

But I suspect that Germany’s legislation, spearheaded by eager and well-intentioned but perhaps misguided souls within the progressive, “traffic-light coalition” that governs Germany – have misread the room.

Protests across the country are planned this weekend against measures within the Selbstbestimmungsgesetz. While in theory the law allows for those operating spaces such as women’s gyms and changing rooms to decide who has access, the UN’s special rapporteur in Germany said that the legislation fails to address the full implications for women and girls – that it lacks the needed safeguards to prevent abuse of the process by sexual predators and other perpetrators of abuse and violence.

In theory, it will also enable parents to transition their babies from the moment they are born.

But, amid the inevitable fallout, it will be trans people that suffer. Which is why I believe it goes too far.

We came close to getting self-ID laws in this country, before the Liz Truss government dropped the plans drawn up by her predecessor, Theresa May. When Nicola Sturgeon’s SNP administration tried to introduce them in Scotland, Westminster stepped in to outlaw the move.

Self-ID was also official Labour Party policy until about a year before the general election. But it was dropped under Keir Starmer, in favour of a manifesto commitment to make the gender recognition process easier by reducing the requirement for medical evidence to, perhaps, a letter from one’s GP.

Opponents of self-ID rail about the potential overrunning of pub toilets with Hagrid lookalikes in dresses. But is that really likely?

In practice, we already have self-ID in the UK. In workplaces, an employee only has to tell their employer that they are transitioning to acquire the protected characteristic of gender reassignment. It then becomes unlawful discrimination to deny them change of name, style of dress and access to gender-appropriate work facilities.

Armed with a statutory declaration signed by your favoured lawyer, bank statements and utility bills can be changed into a name in the new gender. A letter from a GP is enough to grant a change of name and gender-marker in a passport and driving licence, the two most commonly presented forms of ID in the UK.

I transitioned over a decade ago, but still haven’t applied for a gender recognition certificate. I had been waiting for the government to introduce self-ID. I had intended to be “first up the steps”, like those gay couples who got married when it was equalised in March 2014. I now await Labour’s “simplified process” – although it was noticeably absent from the first year’s legislative programme.

There are parallels between the German and UK regimes. In both cases, there is protection in the workplace. In the UK, intentional outing of those with a gender recognition certificate can, by virtue of section 22 of the Gender Recognition Act, bring a criminal record and an unlimited fine to that person who had acquired that knowledge in an official capacity.

Germany has established a similar offence, with an up-to €10,000 fine. It remains to be seen if it will ever be used: in 20 years, it never has been in the UK, although there have been some out-of-court settlements.

I’m a discrimination lawyer, and I confess some discomfort with the criminal law getting involved with what I think is, essentially, a civil right. I believe that trans rights should make progress through visibility, education and persuasion, not fines and punishments.

Another similarity between the two countries is the difficulty in obtaining trans-related healthcare. The UK NHS has enthusiastically adopted the recommendations in the Cass Review and turned off access to affirming healthcare, such as puberty blockers, for young people.

In Germany, a resolution for similar action was passed by the Bundesrtztekammer, a self-governing doctor’s association but in contrast, the Association of Scientific Medical Sciences promulgated guidelines supportive of transition. In both countries, the real problem for adults is finding health resources. In both countries, waiting lists grow ever longer.

For now, I can only hope that the German self-ID legislation comes into effect without fuss – and, if there are to be demonstrations, without incident. If only so we can all just move on and get on with our lives.