Issue: August 2018

GERMANY - The Impact of the Third Gender for Employers in Germany

By: André Zimmermann

Germany’s Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) has ruled that there must be the option of registering on birth certificates a gender that is neither male nor female. The introduction of a third gender will raise questions for employers too, in particular with regard to gender discrimination.

The Ruling

In late 2017, the BVerfG held that the constitutional rights of individuals who cannot be permanently categorized as belonging to either the male or the female gender are being violated if the law on civil status requires them to register their gender while not allowing any entry other than a positive gender definition as either male or female.

The case was brought by a registered female whose chromosome testing revealed that the individual was neither of female nor male sex. The plaintiff had brought the action after several lower courts had ruled against a bid to introduce the gender options “inter” or “diverse” in the birth register.

In Germany it has been possible since 2013 to leave empty the gender box blank on the birth certificate or refer to the option “not stated” for people born with characteristics of both males and females. However, the court held that referring those affected to these options does not suffice and is unconstitutional.

According to the court, the German constitution protects the sexual identity of a person given that this is at the core of an individual’s personal identity and social perception. This protection also covers the positive description of one’s gender.

Now, the German legislature has until December 31, 2018, to implement new regulations in line with the BVerfG’s guidelines. The category could be called “inter” or “diverse.” Once the law is passed, Germany would become the first European country to offer intersex people the option of identifying as a designation other than male or female.

Some countries, including Australia and New Zealand, do recognize intersex as an option on official documents. In 2015, a law introduced in New York resulted in more than 700 people changing their birth certificates to “intersex.” In 2017, California became the second U.S. state to allow for such change.

Until the new law has passed, according to the court, courts and state authorities should no longer compel intersex people to choose between identifying as male or female. It is highly likely that a third gender will be introduced by such law. In employment law, too, this raises new questions, particularly in relation to discrimination on grounds of gender.

Gender-Neutral Job Advertisements

Discrimination on the grounds of gender must be prevented in accordance with the German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG). If employers disregard this rule, they face strict liability damages claims and compensation claims from affected employees. Also, the intangible damage suffered in the form of damage to a company’s reputation in case of gender discrimination is not to be underestimated, especially given the new power of social media where everyone is in the position to cause a PR crisis (aka shitstorm) for a company by just one tweet or post.

Employers must, in particular, design job advertisements in a gender-neutral manner. Since the ruling of the BVerfG, it must be assumed that the term “gender” no longer solely refers to men and women but includes individuals who do not belong to either the male or the female gender.

If one interprets section 1 AGG against the background of the recent ruling, the prohibition of gender discrimination will now no longer apply only to men and women but also to individuals who do not belong to either the male or the female gender. Consequently, there is a strong argument in favor of no longer addressing job advertisements only to women or men but also to a third gender in order to comply with the principle of gender neutrality as newly established by the BVerfG.

What Does the Ruling Mean in Practice?

Employers are well advised to review their current practice regarding job advertisements now and, in any event, no later than when the new law enters into force, presumably on January 1, 2019. The adjustment of job advertisements is also advisable in view of the reversal of the burden of proof under the AGG. If a job advertisement is placed without reference to the third gender, this will likely constitute a fact that gives rise to the presumption that this gender has been discriminated against. As a result, in the event of a dispute, the employer would have to rebut this presumption.

Gender-neutral broader language and job descriptions continue to be a safe way to avoid gender-discrimination claims. There is a strong tendency amongst legal advisors, however, to expressly refer to the third gender in job advertisements. Employers should make it clear in their job advertisements that they are open to all kinds of people, regardless of gender, and that they welcome their applications.

In this context, if no neutral job title can be found, it may be appropriate to include designations in brackets. The previous addition “(m/f)” does not take account of the third gender and therefore will likely give rise to a presumption of discrimination on the grounds of gender. The mere notice that “m/f” is deemed to include all individuals will likely not suffice to avoid any sanctions under anti-discrimination law. Based on the term “inter/diverse” suggested by the BVerfG, the designation in brackets should be extended to read “(m/f/d),” “(m/f/i)” or “(m/f/x)”.

Action to Take for Employers

Regardless of the need for action which has now clearly arisen on the part of the legislature, employers should pay closer intention to potential gender discrimination and look into the practical consequences of the ruling. Regardless of the decision, employers should create a work environment that is free from discrimination by also taking into account different gender identities.

As the law in this area continues to develop, here are some tips for employers looking to be proactive and minimize risk:

  • If you have not already, consider rewriting non-discrimination and anti-harassment policies to include gender identity and train employees on it.
  • Re-examining gender-based dress codes is a good idea.
  • Employees should have access to restrooms consistent with their gender identity: If possible, add a gender-neutral option or a single-occupant restroom.
  • Keep tabs on case law and legislation so you are prepared.

André Zimmermann

Orrick, Herrington & Sutcliffe LLP