Penelope Frank is a climate activist with the Last Generation group who glued herself to the tarmac of the Berlin airport in late 2022. Frank is standing trial for disrupting air traffic, and if convicted could be sentenced to a prison term.

She identifies as a woman, but on paper, her sex is classified as male — and therefore she would be sent to a men's prison if she were to be convicted.

But men's prisons are inadequately prepared to deal with transgender people, said René Müller, the federal chairperson of the prison staff union in Germany. "You have to keep an eye on them, of course, for their protection. We are understaffed at the moment so we can't manage that at all times. We actually feel a bit left alone by the Federal Justice Ministry."

Frank, meanwhile is seeking donations to be able to pay fines instead of serving prison terms.

Huge challenge for prisons

According to Müller, an estimated 60,000 prisoners, persons in preventive detention and people in pre-trial detention are incarcerated in Germany's nearly 200 correctional facilities, and prisons are already suffering severe staff shortages. There is currently a shortage of some 2,000 correctional officers across the country.

Estimates of the number of trans people vary. But the German Society for Trans Identity and Intersexuality estimates that up to 500,000 trans people live in Germany, a country of 83 million inhabitants.

Prisons in Germany fall under the jurisdiction of its 16 states. Some of them have already created special facilities for trans inmates or developed specific guidelines, or have organized training for correctional staff.

It's a huge challenge for the prisons, because men and women are not allowed to share facilities in prisons according to the principle of gender segregation.

Germany's more than 40-year-old Transsexuellengesetz ("Transgender law")initially required transgender people to undergo gender confirmation surgery in order to have key identity documents changed. This has since been declared unconstitutional.

The federal government has now put forward a Selbstbestimmungsgesetz ("Self-determination law"), which would allow for legal gender and name changes through a simple declaration.

Trans people face gauntlet in prison

In prisons, said Müller, individual accommodations and separate detention areas are the way to go. "It's the job of the justice ministries to equip our correctional institutions accordingly in terms of personnel, logistics and finances. That's what we demand from politicians."

Thomas Galli knows German prisons inside and out. The lawyer has managed two prisons and has worked as an attorney in the Bavarian city of Augsburg since 2016. He represented Annemarie House, a trans woman who was imprisoned for almost two years for fraud.

"Fortunately, it worked out that she could be released. But it was clear that the prison system is not at all prepared for something like this," said Galli. He added that several trans people in prison are "sort of hidden away in the infirmary or isolated somewhere else for months because you don't really know what to do with them."

House was put into the men's ward, then moved into the women's ward, recalled Galli. The assessment to determine which correctional facility House would be eligible for dragged on for months.

"There's already a very strong macho culture in most prisons, and not necessarily a whole lot of tolerance. There are lots of young male inmates, also with problematic personalities, and often with a tendency toward violence," said Galli. "From my point of view, the fear is justified that trans inmates will be bullied and sexually harassed and assaulted."

Galli believes existing areas for detainees with special needs, such as geriatric units for older prisoners, could serve as a model. What is key, he said, is that trans people must have a say.

He said special regulations must be made in all state laws regarding the treatment of trans people. "To make sure there is training of correctional staff. And that special departments are created for people who don't fit into either the male or female correctional system," he said.

This article was originally written in German.

It was updated when the Cabinet put forward its self-determination law at the end of August 2023.

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