Trans people often experience multi-layered discrimination based on their gender expression or gender identity, especially if they do not comply with cissexist, binary gender norms.
For a long time, there was no legal option other than male or female to register in civil status law. A trans person who was assigned female at birth filed a constitutional complaint (1 BvR2019/16). They had applied for the entry of "inter/diverse", alternatively "diverse", as their gender category in the birth register, since they do not identify as either female or male.
By judicial decision of October 10, 2017, the Federal Constitutional Court ruled that people who do not identify as male or female may still register with a third gender option.
With the "Law to change the information to be entered in the birth register", the possibility was created to choose the gender category "diverse" when giving birth to children who cannot be clearly assigned to the male or female sex.
This has practical implications for adults who do not identify as male or female. If they want to change their civil status, this is now increasingly being done by authorities. In accordance, people should be addressed with pronouns and titles that match their gender identity, for example, job postings should not only be targeted at people who identify as male or female, but also include the legally defined third option "diverse".
Unfortunately, we still have a long way to go. In order to promote the practical implementation of the right to address and register trans people appropriately, BUG supports persons who have been discriminated against in this context.
Together with a lawyer specialised in the General Equal Treatment Act and activists from the trans* community, BUG is working on several cases of discrimination in online purchases. Lawsuits were filed in court and several complaints were submitted to the respective institutions.
Two lawsuits are aimed at preventing discriminatory communication from vendors on the Internet. The companies were requested to expand the purchase and order process to include a third gender option ("diverse"), which has been required by law since 01.01.2019, as well as to include an empty field that does not require any information.
In one of the lawsuits, the plaintiff, who has a non-binary gender identity in all social, professional and legal contexts, wanted to buy a train ticket from Berlin to Braunschweig on the German website Deutsche Bahn. A purchase requires a mandatory specification of "Mr." or "Ms." when registrating on the website and therefore hinders non-binary people from booking a ticket. The person affected hence filed a lawsuit on grounds of discrimination. A legal dispute in this regard against Deutsche Bahn was heard on September 24, 2020 at the Frankfurt am Main regional court. The court ruled that the obligatory indication of "Mr." or "Ms." violated the non-binary plaintiff's general right to personality, but did not find any discrimination.
The plaintiff and BUG consider Deutsche Bahn's behaviour to be discriminatory within the scope of the AGG and have therefore appealed the judgment. The court hearing for the successfully filed appeal took place at the end of May 2022. You can view our press release on the appeal hearing here. On June 21, 2022, the OLG Frankfurt am Main ruled in favour of the plaintiff and awarded compensation of €1,000.00. Our press release on the appeal judgement can be found here. BUG has put together a press release, which you can access here. The judgement can be found here.
After an appeal was declared inadmissible, Deutsche Bahn filed a non-admission complaint with the Federal Court of Justice. You can find out more about this in our press release.
In two cases, discrimination was proven and a comparison was reached in 2020 and 2021. One company has committed itself to revising its website accordingly within a reasonable time frame. The other company adjusted the ordering process on its website promptly and to the satisfaction of the person concerned.
BUG submitted a formal complaint to the arbitration board of the German Savings Banks and Giro Association because a trans customer was only provided with a binary gender option. However, the arbitration board did not classify the incident as discrimination.
On behalf of a person affected by discrimination, BUG has lodged a complaint with the ombudsman of the Berlin State Office for Equal Treatment and Against Discrimination against the Berlin bathing establishments (Berliner Bäderbetriebe). The background is the lack of gender-neutral changing rooms, which disadvantage queer people when accessing public pools. Not only do they have to compulsively choose one of the binary changing room options, but they also often have discriminatory and violent experiences in public bathrooms and changing rooms. Although the Berliner Bäderbetriebe and the Berlin Senate have been aware of this problem for years, no extensive efforts have been made to eliminate it. Since not only the General Equal Treatment Act, but also the Berlin State Anti-Discrimination Act, which came into force in 2020, prohibits discrimination on the basis of sexual identity, the person concerned and BUG demanded the establishment of gender-neutral changing facilities in order to also grant queer people non-discriminatory participation in public life. The complaint supported by BUG was processed by the ombudsman office of the Berlin Senate. The Berliner Bäderbetriebe have expanded a freely accessible changing room, which was originally only intended for people with disabilities, into a changing room for non-binary people.
In another case, it was achieved that the database of a German employer's liability insurance association be supplemented with an additional gender option so that the address can be made appropriately.