The impact of the third gender on German Employment Law

I. Introduction

On October 10th, 2017, the Federal Constitutional Court of Germany (Bundesverfassungsgericht – BVerfG) ruled (1-BvR 2019/16) that individuals who cannot be permanently identified as male or female are violated in their constitutional right according to Article 3 subsec. 3 sent. 1 Constitutional Law (Grundgesetz – GG) and their general right of personality, based on Article 2 subsec. 1 in conjunction with Article 1 subsec. 1 Constitutional Law, when the civil status law requires the gender to be registered but does not allow any other positive entry than “male” or “female”. The Court stated that the general right of personality also protects the gender identity of a person as a key characteristic of the social perception and personal identity.

The complainant, who has an atypical set of chromosomes and was assigned to the female gender in the birth register, filed a request with the aim to correct their birth registration by deleting the gender “female” and adding the gender “inter/diverse”, alternatively only “diverse”. The request was rejected by the registry office with the argument that the only possibility for people who do not identify neither as male nor female is to leave a blank space where the gender entry is made, sec. 22 subsec. 3 Civil Status Act (Personenstandsgesetz – PStG). The request for correction filed with the local court was rejected; the complaint filed was also unsuccessful. With its decision, the Federal Constitutional Court has now called on the legislature
to change the provisions of the Civil Status Act until December 31st, 2018. Most likely is the introduction of a third gender. It is not sure yet which term will be used for the third gender. Possible terms are inter, diverse or other. Irrespective of this problem, employment law will now have to face changes.

II. Effects on German Employment Law

According to sec. 11 General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG), employers are obliged to keep job advertisements gender-neutral. From now on, it has to be assumed that the word “gender” also includes those who cannot relate to one of the common genders male or female. Sec. 1 General Equal Treatment Act has to be interpreted in a way that the prohibition of all discrimination based on gender also includes inter/diverse persons.

Currently, advertising jobs with the wording (m/w) for male and female (männlich/weiblich) is common. As of now, due to the principle of gender-neutrality, it is recommended to change the wording to (m/w/i) for inter or (m/w/d) for diverse or to keep job advertisements completely gender neutral by mentioning only a job title. This also means protecting those who can be assigned to one gender but feel that they belong to another sexual identity.

Those kind of changes in advertising jobs are also recommendable regarding the reversal of the burden of proof concerning the discrimination based on gender, sec. 22 General Equal Treatment Act. Discrimination due to gender can be presumed if the employer advertises a job without including the third gender. A violation of the General Equal Treatment Act can lead to damage claims of the affected employee.

Changes have to be made at the latest when new regulations are coming into force, presumably on January 1st, 2019. However,
it may be recommendable to change job advertisements now.

III. Further changes and actions to take

There are also some future effects if you take a close look:

Sec. 6 subsec. 2 sent. 4 Workplace Ordinance (Arbeitsstättenverordnung) states that sanitary facilities have to be divided into rooms for males and rooms for females. In observance of the decision, this applies to the third gender as well. In future, the employer might be advised to set up sanitary facilities for the third gender or supply open facilities for everyone.

Because of gender-equality reasons, the future company dress code should contain gender-neutral guidelines and should not differentiate between men and women.

Currently, in Germany it is usual to use “Sehr geehrte Frau/Sehr geehrter Herr” (Dear Mrs./Dear Mr.) as a salutation. Because of gender-equality reasons, one may work with a *-sign from now on, for example “Sehr geehrte* Frau*Herr” (Dear Mrs./Dear Mr.) or “Liebe Mitarbeiter*Innen” (Dear employees).

Furthermore, a change regarding sec. 15 subsec. 2 Works Constitution Act (Betriebsverfassungsgesetz – BetrVG) could also be considered. This provision regulates the gender ratio of the works council election. It is likely that the third gender will be taken into account.

In view of future changes, the employer should observe case law and legislation even more accurate than usual. The binary gender system in European Law may also be subject to a change in the future.