The debate over gender-neutral language in texts and speeches of all kinds is becoming an increasingly prominent issue in society. The company operating the website has now realized that this is not just a matter for linguists. A conviction has been handed down. If the verdict is overturned in the ongoing appeal, the website will have to be modified.
Online Store Offered Only “Mr.” or “Ms.” as Options
The website, designed for high traffic—reportedly the Deutsche Bahn online store—had offered only the options “Mr.” or “Ms.” Customers were required to select one of these options when purchasing goods or registering for the online store. In subsequent communications, the e-commerce system then adapted to the selection and used the corresponding forms of address when processing purchases, handling complaints, or in promotional correspondence.
Claims of the Plaintiff
A plaintiff with a non-binary gender identity felt that this violated their rights. They demanded a cease-and-desist declaration and €5,000 in monetary compensation.
Claim for injunctive relief is granted—website must be modified
The Frankfurt am Main Regional Court granted the request for an injunction with the following ruling:
“The defendant is ordered to refrain from discriminating against the plaintiff in the initiation, conclusion, and performance of a service or … contract by requiring that
a) the plaintiff is required to specify a title such as ‘Mr.’ or ‘Ms.’ when using the defendant’s services and cannot select a gender-neutral title;
b) the plaintiff is referred to as ‘Ms.’ or ‘Mr.’ in the issuance of …, customer service correspondence, invoices, and accompanying advertising, as well as in the administration of personal data stored for this purpose.”
This was supplemented by the customary threat of a coercive fine.
The requested €5,000 in “compensation for pain and suffering” was not awarded, but practitioners must regard the injunction issued as very far-reaching, as it ultimately necessitates completely reprogramming the online store system to include an additional gender-neutral form of address. Many online stores are based on more or less off-the-shelf standard systems and are unlikely to be expandable to such an extent for individual site operators. One could now avoid this issue by making the form of address a non-mandatory selection, but the store system would also have to be designed for this and offer the option to use gender-neutral text in such cases.
Potential for Further Legal Arguments
After all, the otherwise very thoroughly reasoned and balanced ruling on this issue still offers potential for discussion in subsequent cases or in the ongoing appeal proceedings regarding whether every website operator is subject to this obligation.
The Regional Court itself determined that the online store operator can only be required to cease the infringement within the limits of what is reasonable. The operator must exhaust all legally, economically, and practically available options to prevent the infringement. Accordingly, only a certain amount of additional effort can reasonably be expected of the store operator.
In this case, however, the defendant company had not presented any arguments regarding unreasonableness as it pertained to itself, but had instead argued solely on the basis of the general costs of the transition across the entire corporate group. In subsequent cases, one could therefore attempt at this stage to convince the court of the impossibility or unreasonableness of such changes, but would have to ensure that the actual costs incurred by the defendant company are demonstrated.
Options for Implementation
If this does not suffice to satisfy the obligation to refrain from such practices, the ruling even discusses how this requirement could be implemented:
“The defendant can therefore comply with this injunction, on the one hand, by introducing additional forms of address alongside ‘Mr.’ and ‘Ms.,’ at least one of which must be gender-neutral—for example, ‘Hello,’ as proposed by the plaintiff. Another possibility is a free-text field in which a form of address of one’s own choosing can be entered. On the other hand, the defendant can also comply with the injunction by refraining from specifying a form of address altogether. The injunction is only relevant as long as the defendant insists on a mandatory choice of either ‘Mr.’ or ‘Ms.’ as the form of address.”
Legal Rationale
The Regional Court’s remarks on the legal situation are of particular legal interest. A claim for injunctive relief was not granted directly under § 21(1), sentence 2 of the AGG (General Equal Treatment Act), but rather by way of analogy under §§ 823(1) and 1004(1), sentence 2 of the BGB, which the plaintiff apparently had not even foreseen.
No Violation of the AGG
In fact, there was no discrimination within the meaning of the AGG. In short, the plaintiff was not excluded from purchasing the goods, nor did she have to pay more or receive otherwise less favorable terms. The purchase could be made in the normal course of business and under the same terms as for all other customers, and there were no disadvantages in the transaction process. The contract and its performance were the same for everyone. Thus, there was neither direct nor indirect discrimination within the meaning of § 3(1), (2) of the AGG, so that the requirements of the civil law prohibition against discrimination under § 19 of the AGG were not met.
Consequently, no claim under the AGG could be granted.
Violation of the General Right of Personality
The court therefore based its ruling on the general right of personality, the violation of which grants a claim for injunctive relief by analogy under Sections 823 (1) and 1004 (1), second sentence, of the German Civil Code (BGB). The Frankfurt am Main Regional Court begins its reasoning regarding the general right of personality as follows:
“The general right of personality, however, protects, among other things, gender identity, ‘which is regularly a constitutive aspect of one’s own personality’ (Federal Constitutional Court, Decision of Oct. 10, 2017 – 1 BvR 2019/16 = NJW 2017, 3643, para. 39). According to general understanding, the form of address is of central importance for presenting oneself in a particular gender identity (Federal Constitutional Court, decision of August 15, 1996 – 2 BvR 1833/95 = NJW 1997, 1632, 1633), as this is how assignment to a gender typically takes place.”
The plaintiff had now been forced to choose a form of address and, thereby, a gender. However, as a person with a non-binary gender identity, she was neither willing nor able to make this decision. She had to deny herself and her identity in order to use the website. In this regard, the Regional Court further cited the case law of the Federal Constitutional Court:
“Since gender identity is also expressed through the form of address, its protection also requires respect for gender identity in the form of address. Thus, according to the case law of the Federal Constitutional Court, a person may demand a form of address corresponding 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 Aug. 15, 1996 – 2 BvR 1833/95 = NJW 1997, 1632, 1633; Federal Court of Justice, judgment of March 13, 2018 – VI ZR 143/17 = NJW 2018, 1671, 1675, para. 45)."
These remarks prompted the Frankfurt am Main Regional Court to further develop the law in this specific case, as the plaintiff had not yet completed a change of civil status. Nevertheless, the chamber apparently had no doubt that the plaintiff did in fact have a non-binary gender identity and deemed this “perceived” gender identity sufficient, in line with other rulings of the Federal Constitutional Court. In this respect, there is a perceived threat to the self-determined development and preservation of one’s personality when one is constantly addressed in a manner inconsistent with one’s gender identity.
No Equality in Injustice
The general practice was not ignored. The court did address the fact that, virtually nowhere, is there an alternative option besides “Mr.” and “Ms.” However, the court ultimately applied the principle of “no equality in wrongdoing.” Even where the law is violated on a massive scale, the affected person is therefore not required to accept the violation in the specific case involving the defendant’s online store.
No monetary compensation was awarded in this case, as the infringement did not constitute the required serious violation of the general right of personality. In this respect, at any rate, online store operators need not fear a “litigation industry.”
Conclusion
While it is already standard practice in the field of job postings to use “m/f/d,” in other areas it is recommended to provide a gender-neutral option wherever a specific form of address must be selected. This must then also be implemented in all downstream systems, such as transactional emails, cover letters, CRM systems, etc.
Outlook
The case did not give the court any reason to examine the issue from a data protection perspective. However, challenges may also arise from the perspective of the GDPR, and data protection compliance requires that this issue be addressed.
The principle of data accuracy applies (Art. 5(1) of the GDPR). This can only be ensured if the groups of people commonly referred to as “Diverse” are able to specify their gender identity accordingly.
Furthermore, it should be examined whether a title of address is absolutely necessary at all. An assessment based on the principle of data minimization (Art. 5(1)(c) GDPR) will often lead to the conclusion that, for this reason, no specific title of address should be mandated.
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
- Higher Regional Court of Frankfurt am Main, 9 U 92/20, no judgment announced to date
Update January 27, 2022:
In its judgment of December 14, 2021—24 U 19/21— the Higher Regional Court of Karlsruhe confirmed the above principles. It also found that offering only two gender options during online shopping constitutes unlawful discrimination—but ruled that there is no right to compensation.
Update April 21, 2022:
There was another similar case before the Frankfurt am Main Regional Court, judgment dated August 26, 2021, Case No. 2-30 O 154/20. From the press release:
The defendant is a sales subsidiary of Germany’s largest railway group. The plaintiff identifies as non-binary; since October 2019, the gender entry on their birth certificate has been listed as “not specified.” The plaintiff holds a BahnCard issued by the defendant and has been attempting in vain since October 2019 to update the data on file with the defendant regarding their gender title. Furthermore, even when purchasing tickets online as an unregistered user in the defendant’s system, it is mandatory to select either “Ms.” or “Mr.” as the title. The plaintiff is of the opinion that she is entitled to compensation and an injunction against the defendant, as the defendant’s conduct is discriminatory.
In its judgment of August 26, 2021, the Regional Court partially granted the claim. The plaintiff is entitled to an injunction against the defendant pursuant to Sections 21(1), sentence 2, in conjunction with Sections 19, 3, and 1 of the General Equal Treatment Act (AGG), as the mandatory selection of “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 remedy the infringement.
By contrast, the plaintiff is not entitled to a claim for monetary compensation under Section 21(2), sentence 3 of the AGG. Upon weighing the relevant factors, the defendant’s misconduct—consisting of its hesitant implementation—cannot be regarded as sufficiently serious in light of the infringement that occurred to justify the payment of monetary compensation.
The substance of this judgment by the Frankfurt Regional Court has not been reviewed by the Frankfurt am Main Higher Regional Court. Deutsche Bahn’s lawyers had missed the deadline for filing an appeal.
Update July 31, 2026:
We wondered what the Frankfurt am Main Higher Regional Court’s ruling on the original case before the Regional Court had actually been at the time.
Update: Frankfurt Higher Regional Court Affirms Discrimination Under the AGG and Awards Compensation
The appeal ruling, which has since been issued, not only largely upheld the Regional Court’s decision but also strengthened the plaintiff’s legal position.
In its ruling of June 21, 2022, Case No. 9 U 92/20, the Higher Regional Court of Frankfurt am Main held that the mandatory choice between the titles “Mr.” and “Ms.” when using an online service may constitute impermissible discrimination against a person with a non-binary gender identity. Unlike the Regional Court, the Higher Regional Court derived the claim for injunctive relief directly from the General Equal Treatment Act (AGG).
Higher Regional Court Finds Direct Discrimination Under the AGG
The Regional Court had previously rejected a claim of a violation of the AGG. It had based its decision on the fact that the plaintiff was able to purchase the services offered at the same prices and under the same conditions as other customers. The contract itself did not contain any less favorable terms.
The Higher Regional Court did not follow this assessment.
In the opinion of the panel, it is not solely a matter of whether the actual service is offered under the same economic conditions. Rather, the decisive factor is that a person with a non-binary gender identity can only enter into the online contract if they provide objectively inaccurate information and classify themselves as either “Mr.” or “Ms.”
In contrast, people with a binary gender identity could select an option that corresponds to their identity. This constitutes less favorable treatment and thus direct discrimination within the meaning of Sections 3 and 19 of the General Equal Treatment Act (AGG).
The criterion of “establishing” a contractual relationship in Section 19(1) of the AGG must be interpreted broadly. It encompasses not only the final content of the contract but also the conditions and procedures under which a business relationship can be initiated and a contract concluded. A company may therefore not make the conclusion of an online contract contingent on a non-binary person selecting a binary gender designation that is incorrect for them.
Protection Even Without a Change in Civil Status
The Higher Regional Court also clarified that protection does not depend on whether the non-binary gender identity is already recorded in the civil registry.
What is decisive is the affected person’s permanently established self-perception regarding their own gender identity. The general right of personality protects individual gender identity. Therefore, the interest in legal protection cannot be denied solely on the grounds that a binary gender designation is still recorded in the birth registry.
No Right to a Specific Neutral Form of Address
However, the decision does not mean that companies are required to provide a specific additional form of address such as “divers,” “Hello,” or any other form requested by the person concerned.
The Higher Regional Court expressly stated that, in principle, there is no right to a specific form of address. However, the company must avoid making the use of its services contingent on the selection of an inaccurate form of address such as “Mr.” or “Ms.”
In practice, this can be implemented, for example, by
- making the provision of a form of address entirely voluntary,
- omitting a form of address altogether,
- providing a gender-neutral option, or
- an open-ended text field is provided.
What matters is the result: A non-binary person must not be forced to select an incorrect binary title in order to enter into a contract.
Transition period until January 1, 2023
However, in requiring the modification of the general online booking system, the Higher Regional Court took into account the technical and organizational effort involved.
The court therefore granted the defendant a transition period of just over six months, ending on January 1, 2023. The court recognized that it was not merely a matter of changing a single selection screen. Rather, the underlying IT systems and processing procedures were also affected.
However, the defendant’s blanket claim of costs amounting to approximately three million euros did not lead to the transition being deemed unreasonable overall. The plaintiff was not required to accept the defendant’s internal plan to implement the changes only at the end of 2023 as part of a larger overall concept. The Higher Regional Court considered implementation by the turn of the year 2022/2023 to be technically feasible and economically reasonable.
Individual communication had to be changed immediately
The court distinguished between the general conversion of the booking system and the specific communication with the plaintiff.
The defendant was no longer permitted to address the plaintiff as “Mr.” or “Ms.” on tickets, invoices, customer service correspondence, accompanying advertisements, or in the data stored for these purposes. The Higher Regional Court did not grant a transition period for this individual obligation.
In the Senate’s view, it was readily reasonable for a company of this size to individually filter out the plaintiff’s data records and communication processes as necessary and to immediately prevent any further incorrect forms of address.
1,000 euros in compensation awarded
The Higher Regional Court also deviated from the Regional Court’s decision regarding the requested monetary compensation.
The Regional Court had previously rejected the claim for monetary compensation in its entirety. The Higher Regional Court, however, awarded the plaintiff the sum of 1,000 euros. The legal basis was Section 21(2), sentence 3 of the General Equal Treatment Act (AGG).
The panel considered non-pecuniary damages to have been proven. In doing so, it took into account, in particular, the psychological distress described by the plaintiff and the fact that, despite repeated complaints, she had continued to be addressed using a male form of address over an extended period of time.
However, the court considered the originally claimed amount of at least 5,000 euros to be too high. In favor of the defendant, it took into account that the discrimination was not specifically directed against the plaintiff and that the software had not originally been developed with the intent to discriminate against non-binary people. As a result, the court ruled that 1,000 euros was necessary but also sufficient to provide the plaintiff with satisfaction.
Practical Consequences for Website and Online Store Operators
The ruling significantly tightens the legal assessment compared to the first-instance decision. It is no longer merely a matter of a claim for injunctive relief based on the general right of personality. The Higher Regional Court explicitly recognizes direct discrimination under the AGG.
For businesses, this means that potential claims need not be limited to injunctive relief. In cases of non-pecuniary damage, claims for compensation under Section 21(2) of the AGG may also be considered.
Operators of websites, customer portals, and online stores should therefore review
- whether a form of address is even necessary for the conclusion of a contract,
- whether only “Mr.” and “Ms.” can be selected,
- whether the selected title is automatically carried over into invoices, tickets, newsletters, or customer service correspondence, and
- whether requests for alternative forms of address can be accommodated technically or at least through individual processing. The Higher Regional Court did not allow an appeal.
The simplest solution—and often the one most preferable from a data protection perspective—is likely to be to completely refrain from requiring the provision of a title. If a title is requested, the form should be designed in such a way that it does not force non-binary individuals to provide inaccurate information.
Updated procedural history:
Frankfurt am Main Regional Court, partial default judgment of August 11, 2020, Case No. 2-13 O 131/20
Frankfurt am Main Regional Court, Final Judgment of December 3, 2020, Case No. 2-13 O 131/20
Higher Regional Court of Frankfurt am Main, Judgment of June 21, 2022, Case No. 9 U 92/20
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.