In a decision published on February 1, 2022, the Higher Regional Court of Karlsruhe (Oberlandesgericht Karlsruhe, OLG Karlsruhe) decided that offering only the gender options “female” or “male” for registering customers in an online shop constitutes a violation of the personality rights protected by the German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG). However, because the online shop changed its website allowing for a gender-neutral option, the court denied the plaintiff’s claim for injunctive relief. Lastly, the court held that there was no right to financial compensation because the intensity of the infringement was low.
Facts of the Case
The plaintiff, who does not identify as either male or female, wanted to buy clothes from the online store of a mid-sized clothing company. A one-time customer registration was necessary, in which one had to choose being addressed as either “Herr” (Mr.) or “Frau” (Mrs.). The plaintiff registered as male and later received an online order confirmation starting with “Sehr geehrter Herr B.” (Dear Mr. B.) (Decision paras. 2–5.)
The plaintiff requested that they be compensated with 2,500 euros (about US$2,858) for nonmaterial damages and reimbursed for legal costs under the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz (AGG)), and that the defendant be required to refrain from future infringements. (Decision para. 6.)
Meanwhile, the defendant amended its website, adding “Diverse/No Salutation” as a third option for registration. Choosing the third option results in messages to customers starting with “Guten Tag” (Good day). The plaintiff argued that this change did not eradicate the discrimination, because one was still forced to pick a category and not all nonbinary persons would fall into the category “Diverse.” (Decision para. 11.)
Decision
The court found discrimination under section 3 in conjunction with section 19, paragraph 1 of the General Act on Equal Treatment. “Direct discrimination” is defined as an instance “where one person is treated less favourably than another is, has been or would be treated in a comparable situation on any of the grounds referred to under Section 1.” (AGG § 3, para. 1.) Section 19 prohibits private persons from discriminating against (potential) contract partners on the grounds of gender, among other reasons, if the contract pertains to a mass market transaction or if the identity of the person is irrelevant to the contract. (Decision para. 24.) Examples are everyday matters, such as shopping or going to a restaurant. In the case at issue, the plaintiff was unable to pick a gender category that matched their nonbinary gender. In the opinion of the court, that put the plaintiff at a disadvantage compared to customers with a binary gender who were able to choose an option corresponding to their identity. (Para. 28.)
The court also held that a violation of the general right to personality, which has its origins in article 2, paragraph 1 in conjunction with article, 1 paragraph 1 of the German Basic Law (Constitution) had occurred. The general right to personality encompasses the protection of gender identities regardless if the person identifies as binary or nonbinary. (Decision para. 31.) In the opinion of the court, identifying with a certain gender is of high individual importance. Therefore, a person must also not be addressed wrongly. If the only gender option a person can choose leads to a wrong salutation, these requirements are not met. (Paras. 31, 32.)
However, the court rejected the claim for injunctive relief under section 21, paragraph 1 of the General Act on Equal Treatment, as well as under section 823, paragraph 1 in conjunction with section 1004 of the German Civil Code (Bürgerliches Gesetzbuch (BGB)). (Decision para. 23.) It stated that, in the case at issue, there was no real risk that the infringement would be repeated as the defendant had changed its website. By offering the third option “Diverse/No Salutation,” the defendant showed that discrimination by gender had not been intended and the plaintiff did not have to fear being addressed wrongly in the future. (Para. 35.) The General Act on Equal Treatment does not require a completely gender-neutral communication in commercial and legal transactions. (Para. 37.)
The court also did not grant nonmaterial damages to the plaintiff. It stated that a violation must have a certain gravity to lead to financial compensation. It reiterated that, as a general principal of German law, nonmaterial damages are granted only on an exceptional basis to prevent abuse. (German Civil Code § 253, para. 1.) On the other hand, to comply with European Union (EU) law, in particular Directives 2000/43/EG and 2004/113/EG, the requirement for compensation must not be overly high as “effective, proportionate and deterrent” legal consequences against acts of discrimination must be in effect. (Decision para. 44.)
Assessing the case at issue, the court stated that the violation did not occur publicly and that the defendant showed a high level of cooperation with the plaintiff by addressing their concerns, even before the proceedings started. The court concluded that the violations’ intensity were low and therefore no financial compensation was necessary. (Para. 45.)
Background on a Third Gender in Germany
In late 2017, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held that the Personal Status Act (Personenstandsgesetz (PStG)) is incompatible with the German Basic Law in that it allows only a female or male gender at birth or no gender entry at all to be registered. The court stated that forcing intersex people to register a gender but not offering a third positive option in addition to male and female violated intersex persons’ general right to personality and the prohibition on discrimination.
Following this decision, the German parliament amended the Personal Status Act to allow registering a newborn as “diverse” or registering as “diverse” upon request later in life. (Personal Status Act § 22, para. 3, § 45b.) However, this is permitted only if the body’s biological constitution does not allow the person’s sex to be determined as male or female. Consequently, the circle of eligible persons is limited, and the law does not allow choosing a gender independent of biology. This has been criticized by legal scholars and intersex and trans organizations. In the explanatory memorandum of the law, it is stressed that the requirements set up by the Federal Constitutional Court have been met and that the Personal Status Register is supposed to provide objective proof of civil status matters, such as gender, which is especially necessary in an international law context (for example, when issuing passports). (Explanatory memorandum at 8.) Members of the German parliament from the Christian Democratic Party (CDU) argue that public interest does not allow for a subjective component when officially determining the gender of a person.
Prepared by Friederike Loebbert, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist