By: Kliemt.Arbeitsrecht

Firm: Kliemt.Arbeitsrecht

From 22 December 2018, a third gender, described as ‘diverse’ has been created for civil status purposes in Germany. This article seeks to raise awareness of the issue for employers, sets out some follow-up daily labour law practice questions on the issue and gives suggestions on how employers should ensure they comply with the law in the future.

In 2017, the Federal Constitutional Court (Bundesverfassungsgericht -BVerfG) instructed the German legislator (BVerfG of 10.10.2017 – 1 BvR 2019/16) to put an end to the infringements of the general ‘right of personality’ (Article 2.1 in conjunction with Article 1.1 of the Constitutional Law) and the prohibition of discrimination in Article 3.3 of the Constitutional Law that resulted from the law on personal civil status only allowing gender to be registered as male, female or unspecified. Afterwards, supporters and critics of the decision described it as the introduction of a ‘third gender’ by the Federal Constitutional Court.

The gender categories of male and female, which were previously recognised both legally and socially, have now been extended by the Act on the Amendment of Information of 18 December 2018 to include a new category, ‘diverse’, that can be entered in the Birth Register.

The Federal Constitutional Court decision

An intersex individual had sued requesting registration of their gender as ‘inter/diverse’, or alternatively ‘diverse’ into the birth register. People are called intersex if their physical gender cannot be clearly assigned as either male or female; in other words, they have characteristics of both sexes. The right of personal civil status in s21 and s22 of the old version of the Civil Status Law (Personenstandsgesetz – PStG) did not take such cases into account; or at least, it was not possible to choose another gender. The only option left for individuals affected was not to have any gender information entered in the birth register. The Federal Constitutional Court considered this to be unconstitutional and also to constitute discrimination on grounds of sex.

In its judgment, the Federal Constitutional Court pointed out various ways of eliminating this discrimination, for example by waiving gender entry under the civil status law or by creating a possibility of selecting a gender that is neither male or female. It instructed the legislator to create a new constitutional provision by 31 December 2018.

Legislative action

The legislator complied with its constitutional mandate (although it waited until the last moment) and introduced the possibility of a ‘diverse’ gender entry into s22 (3) of the Civil Status Law. Since 22 December 2018, people with variations of gender development, that is, intersex individuals, can choose to have their gender certified as ‘diverse’ in the birth register in addition to the three original possibilities: male, female and ‘unspecified’.

Effects on labour law practice

With the change in the law since 22 December 2018, a third gender has probably been ‘born’, but in any case, it is now officially recognised. We must therefore pay it as much attention as the genders previously identified. In particular, questions of equal treatment and further protection regulations must be applied to the individuals concerned. The following issues are particularly important.

Job advertisements

The principle of gender-neutral job advertisement is guaranteed by the General Equal Treatment Act (AGG) (s1 and s7 in conjunction with s11 AGG). Discrimination on the grounds of gender is forbidden. Therefore, ‘diverse’ individuals must also be considered for vacancies and may not be excluded by a job advertisement. The same applies to online applications, which in future should contain ‘diverse’ as well as male and female

In this context, the question arises as to how section 8 of the AGG, which allows for different treatment if gender is an indispensable requirement for the actual performance of the activity, will apply. The social position of men and women as well as their relationship to each other has been particularly influential in this respect in the past. Corresponding empirical values with regard to the third gender do not yet exist, so it will probably be more difficult to justify why a female applicant is preferable to a male applicant and a ‘diverse’ person.

Dress code

In many areas there is already a gender-neutral dress code. However, there are certainly still some areas in which dress code varies according to gender, for example air stewards and stewardesses.

Greetings and titles in cover letters or employment contracts

The conventional wording ‘Dear Mr / Ms’ does not take into account the third gender. It might be possible to work to make it clear that not only men or women are addressed using an asterisk (*) or underscore (_).

Minority quotas

For example, according to s15 (2) Works Constitution Act (Betriebsverfassungsgesetz – BetrVG), the gender that is in a minority in the workforce must be represented in the works council in accordance with its numerical proportion (provided that the works council consists of at least three members). But how can this be implemented if there are insufficient intersex individuals employed in the organisation to respect the proportion required by law?

Sanitary facilities

Will it be necessary to provide toilets for the third gender, as it is already prescribed for men and women in the German Workplace Ordinance (Arbeitsstättenverordnung – ArbStättV)? Or is the toilet description ‘male/diverse’ or ‘female/diverse’ sufficient for the time being?

Preview of possible implementation strategy for a job advertisement

As the brief outline of a few concrete examples above shows, it is not yet possible to determine with certainty how employers should deal with the third gender in practice in a legally secure way. At the moment, it is only possible to suggest different implementation options. It remains to be seen which of the options will ultimately prevail in each individual case and what will be considered acceptable by the courts.

With regard to the application process, however, we can already point out with great certainty that it is essential to draft gender-neutral job advertisements that include the third gender. In order to avoid accusations of gender discrimination and to prevent claims for compensation or damages for violation of s15 of the AGG, gender-neutral wording (e.g. generic terms such as ‘specialist in …’, ‘position in …’, ‘personnel’ etc.) should be used throughout, from the title to the final sentence. Where additions such as ‘(m/f)’ were used in the past, we also recommend the use of ‘d’. There is a further question as to whether it should be ‘(m/w/d)’ or r ‘(d/m/w)’: the latter (alphabetical) layout is probably the safest legal option. The complex distinction between gender groups could also be avoided by using direct forms of address: ‘You will be working with us…’ or ‘We will expect you to…’. It also seems possible that employers could choose one of the three gender forms but make it clear in the text of the job advertisement that persons of each gender are included and addressed.