The discussion about gender-neutral formulations in texts and speeches of all kinds is becoming more and more prevalent in society. The company operating a website has now discovered that this is not just a topic for linguists. There has been a conviction. If the verdict is changed in the ongoing appeal, the website will have to be changed.
Shop only offered "Mr" or "Mrs" as options
The website designed for mass traffic – reportedly the online shop of Deutsche Bahn – only offered the options "Mr" or "Mrs". It was mandatory to choose one of these options when purchasing goods or registering for the online shop. In subsequent communication, the e-commerce shop system then used the selection and applied the corresponding salutations when processing purchases, complaints or advertising mailings.
Claims of the person making the claim
A plaintiff with non-binary gender identity felt that their rights had been violated as a result. They demanded that the defendant issue a cease-and-desist declaration and pay €5,000 in monetary compensation.
Right to injunctive relief is given – website must be changed
The District Court of Frankfurt am Main granted the injunction with the following operative part:
"The defendant is ordered to refrain from discriminating against the plaintiff in the initiation, conclusion and execution of a service or... contract by
a) the plaintiff is required to address the defendant as Mr. or Mrs. when using the defendant's services and is not able to choose a gender-neutral form of address;
b) the plaintiff is referred to as Ms or Mr in the issuing of [...] customer service letters, invoices and accompanying advertising and in the administration of personal data stored for this purpose."
This was supplemented by the usual threat of disciplinary action.
The desired €5,000 "compensation" was not awarded, but as a practitioner, the injunction issued must be considered very far-reaching, because it effectively means that the web shop system has to be completely reprogrammed to include another neutral form of communication. Many web shops are based on more or less ready-made standard systems and it is unlikely that they can be expanded to such an extent by the individual site operator. One could now avoid the issue by not making the salutation a mandatory selection, but the shop system would also have to be designed to allow this and offer the option of using neutral texts.
Potential for argument in follow-up cases
Nevertheless, the otherwise very well-founded and balanced judgment on this topic still offers potential for discussion in follow-up cases or in the ongoing appeal instance as to whether every website operator is obliged to do so.
The district court itself found that the web shop operator can only be obliged to refrain within the limits of reasonableness. He has to exhaust all the legal, economic and factual possibilities available to him to rule out the impairment. Accordingly, only a certain amount of additional work can be expected of the shop operator.
In this case, however, the defendant company had not presented any arguments regarding the unreasonableness of the changes for itself, but had only argued with regard to the general costs of the reorganization for the entire group. In subsequent cases, it would be possible to try to convince the court of the impossibility or unreasonableness of such changes, but it would be necessary to ensure that the costs for the defendant company were actually presented.
Possibilities for implementation
If this does not result in the obligation to desist, the judgment even discusses how this requirement could be implemented:
"The defendant can therefore fulfill this cease-and-desist obligation, on the one hand, by creating further forms of address in addition to 'Mr.' and 'Mrs.,' at least one of which must be gender-neutral, for example, like the 'Guten Tag' proposed by the plaintiff." It is also conceivable to have a free text field in which a salutation of one's own choice can be entered. On the other hand, the defendant can also comply with the injunction by refraining from providing a salutation. The injunction is only affected as long as the defendant insists on a mandatory choice of either "Mr." or "Mrs.".
Legal reasoning
The district court's comments on the legal situation are legally interesting. An injunction was not granted directly under § 21 para. 1 sentence 2 AGG (General Equal Treatment Act), but via the detour of § 823 para. 1, 1004 para. 1 sentence 2 BGB (German Civil Code) by analogy, which apparently had not even been foreseen by the plaintiff.
No violation of the AGG
There was actually no discrimination within the meaning of the AGG. In short, the plaintiff was not excluded from purchasing the goods, nor did he have to pay more or receive worse conditions. It was possible to purchase normally and at the same conditions as for all other customers, and there were no disadvantages in the processing. The contract and its execution were the same for everyone. Thus, there was neither direct nor indirect discrimination within the meaning of § 3 para. 1, 2 AGG, so that the requirements of the civil law prohibition of discrimination according to § 19 AGG were not met.
Thus, no claim under the AGG could be granted.
Violation of general right of privacy
The court therefore based its judgment on the general right of privacy, which, if violated, grants an injunction under § 823 (1), 1004 (1) sentence 2 BGB by analogy. The Frankfurt am Main Regional Court's considerations regarding the general right of privacy are as follows:
"However, the general right of personality protects, among other things, gender identity, which is regularly a constitutive aspect of one's own personality" (BVerfG, decision of October 10, 2017 – 1 BvR 2019/16 = NJW 2017, 3643, para. 39). It is generally understood that the form of address is of central importance for the expression of a particular gender identity (BVerfG, decision of August 15, 1996 – 2 BvR 1833/95 = NJW 1997, 1632, 1633), because this is how assignment to a gender is regularly carried out."
The plaintiff had now been forced to choose a form of address and thus a gender. However, as a person with non-binary gender identity, she was unable and unwilling to make this decision. She had to deny herself and her identity in order to use the website. The district court referred to the case law of the Federal Constitutional Court:
"Since gender identity is also expressed through the way a person is addressed, its protection also requires respect for gender identity when addressing a person. According to the case law of the Federal Constitutional Court, a person may demand an address that corresponds to their new understanding of their role if they have already changed their name in accordance with the provisions of the Transsexuals Act (BVerfG, decision of August 15, 1996 - 2 BvR 1833/95 = NJW 1997, 1632, 1633; BGH, judgment of March 13, 2018 - VI ZR 143/17 = NJW 2018, 1671, 1675, para. 45)."
These statements prompted the Frankfurt am Main District Court to continue developing the law in this specific case, since the plaintiff had not yet changed their legal gender. Nevertheless, the chamber apparently had no doubt that the plaintiff actually had a non-binary gender identity and, in line with further rulings by the Federal Constitutional Court, allowed this "felt" gender identity to suffice. In this respect, there is a perceived threat to the self-determined development and preservation of personality if the person is constantly addressed in a way that does not correspond to their gender identity.
No equality in injustice
The court did not ignore the general practice. It did consider the fact that there is virtually nowhere else to choose from besides "Mr." and "Ms.". In the end, however, the principle of "no equality in wrong" applies to the court here. Even where masses of rights are broken, the person concerned does not have to accept the violation in the individual case of the use of the defendant's web shop.
The court did not award monetary damages because the violation of the plaintiff's rights was not severe enough. This means that webshop operators do not have to worry about a "lawsuit industry".
Conclusion
While it is already common practice to use "m/f/d" in job ads, in other areas, it is recommended to create a gender-neutral selection option where a salutation must be chosen. This must then also be implemented in all subsequent systems, such as transaction emails, cover letters, CRM systems, etc.
Outlook
The matter did not give the court any reason to consider the issue from a data protection perspective. However, there may be trouble ahead from a GDPR perspective, and data protection compliance requires that the issue be addressed.
The principle of data accuracy applies (Art. 5 para. 1 lit. DSGVO). This can only be taken into account if the groups of people commonly referred to as "various" can store their gender identity accordingly.
Moreover, it should be examined whether the salutation is absolutely necessary at all. An examination under the principle of data minimization (Art. 5 (1) (c) GDPR) will often conclude that no salutation needs to be prescribed for this reason.
Course of proceedings:
- Frankfurt Regional Court, default judgment of August 7, 2020, 2-13 O 131/20
- Frankfurt Regional Court, final judgment of December 3, 2020, 2-13 O 131/20
- Frankfurt am Main Higher Regional Court, 9 U 92/20, no judgment known so far
Update 27.01.2022:
In its judgment of December 14, 2021 - 24 U 19/21, the Higher Regional Court of Karlsruhe confirmed the above principles. It also considers the discrimination resulting from the option of only two genders when shopping online to be unlawful – but does not recognize a claim for compensation.
Update 21.04.2022:
There was another similar case before the Frankfurt am Main District Court, judgment of August 26, 2021, Ref. 2-30 O 154/20. From the press release:
The defendant is a subsidiary of the largest German railway group. The plaintiff has a non-binary gender identity; since October 2019, the gender entry on their birth certificate has been "unspecified". The plaintiff is the owner of a BahnCard issued by the defendant and has been trying in vain since October 2019 to adjust the data stored for this with the defendant with regard to the gender-specific salutation. In addition, when purchasing tickets online as an unregistered person in the defendant's system, it is also mandatory to choose between a salutation as a woman or a man. The plaintiff is of the opinion that it is entitled to claim compensation and an injunction against the defendant, as the defendant's behavior is discriminatory.
In its judgment dated August 26, 2021, the Regional Court partially upheld the claim. The plaintiff is entitled to injunctive relief against the defendant in accordance with §§ 21 (1) sentence 2 in conjunction with 19, 3 and 1 AGG, since the mandatory selection of a title as Ms or Mr in connection with the BahnCard or when purchasing tickets online constitutes discrimination within the meaning of the AGG. However, the defendant is to be granted a period of six months to end the discrimination.
However, the plaintiff is not entitled to a claim for payment under § 21 (2) sentence 3 AGG. In the necessary weighing of interests, the misconduct of the defendant in the belated implementation of the law is not to be assessed as so serious as to justify the payment of monetary compensation.
The Higher Regional Court of Frankfurt am Main did not review the content of this judgment of the Regional Court of Frankfurt. Lawyers for Deutsche Bahn missed the deadline for an appeal.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.