National judgements:

Rejection of the application of a Trans*person

Federal Labour Court, judgment of 17.12.2015, 8 AZR 421/14,

The defendant had to fill a full-time position as a picker. The employee*intermediary arranged an interview for the trans*sexual plaintiff with the defendant's logistics manager. As agreed, the plaintiff went to the defendant and waited there for the logistics manager, who was informed by telephone. When he arrived, he initially did not perceive the applicant as a woman. The applicant approached him and asked whether he was the logistics manager, which he affirmed. He then said that he thought the mediator had announced a woman to talk to. The applicant pointed out that she was the woman announced. The further details of the interview are disputed between the parties. Three days later, at the applicant's request, the intermediary informed the applicant that the defendant's logistics manager had chosen an applicant from another temporary employment agency.

The plaintiff then sought compensation for a violation of the prohibition of discrimination under the AGG, which was rejected by the Labour Court and the Regional Labour Court.

The Federal Labour Court determined that trans*sexuality as such is not one of the grounds mentioned in § 1 AGG, which is linked to the prohibition of discrimination in § 7 para. 1 AGG. It may, however, be of significance both within the scope of the reason "gender" stated in § 1 AGG and within the scope of the reason "sexual identity" in the sense of § 1 AGG. This is not opposed by the fact that the national legislator, unlike the European legislator, has not assigned transsexuality to the reason "sex" but to the reason "sexual identity". According to the explanatory memorandum, "sexual identity" covers homosexual men and women as well as bisexual, transsexual and intersexual people. In contrast, Union law does not recognise the concept of sexual identity. In an interpretation of § 1 AGG in conformity with Union law, trans*sexuality is encompassed both by the reason "sex" and by the reason "sexual identity". A person who considers themselfe to be complained about as a result of discrimination on the grounds of their transsexuality suffices for their burden of proof pursuant to § 22 AGG if they present evidence which leads to the conclusion with a predominant probability that they wer perceived as such a person and wer therefore disadvantaged. In the present case, the presumption is well-founded that the disadvantaged person assumed the applicant's transsexuality and that that assumption was one of the reasons for the decision.

Unequal treatment of registered civil partnerships and marriage in the civil servant family supplement unconstitutional

Federal Constitutional Court, Order of the Second Senate of 19.06.2012, 2 BvR 1397/09

The decision of the Federal Constitutional Court is based on the constitutional complaint of a federal civil servant living in a registered civil partnership since 2002, whose application for payment of the family allowance was rejected in 2003.

Since during the pending constitutional complaint procedure the unequal treatment of marriage and civil partnership in federal pay law was eliminated with retroactive effect to 1 January 2009, the Federal Constitutional Court only had to rule on the constitutionality of the legal situation existing up to this point in time.

The BVerfG clarified that the unequal treatment of registered civil partnerships and marriage in the civil servant family supplement pursuant to § 40.1 no. 1 of the Federal Law on Salaries since the entry into force of the Civil Partnerships Act on 1 January 2004 had been a violation of the principle of equal treatment. The Commission considers that the provisions of Article 3(1) of the Basic Law, as amended on 1 August 2001, are incompatible with the general principle of equal treatment laid down in Article 3(1) of the Basic Law, since there has been no objective justification for the unequal treatment of married civil servants living in a registered civil partnership since that date.

This means that civil servants who have asserted their claims at an early stage are entitled to subsequent payment as of 01.08.2001.

Foreign allowance in registered partnership

Federal Labour Court, judgment of 18.03.2010 - 6 AZR 434/07

The plaintiff worked for the defendant abroad and had been sharing a common household with her registered civil partner since the beginning of the service. The plaintiff asked the defendant to pay her the foreign surcharge just as for married couples. The defendant refused.

This could constitute discrimination.

It was assessed that the defendant was or is obliged to pay a foreign surcharge to the applicant as for married couples in the amount according to the rules applicable to the defendant's tariff law, as long as the plaintiff maintains a common household with her registered civil partner in a foreign place of services.

Equality for registered partners regarding the provision for dependants as part of company pension benefits

Federal Labour Court, judgment of 14.01.2009 - 3 AZR 20.07

The plaintiff was in a registered partnership with a former employee of the defendant. As the partner died, the plaintiff filed for a provision for dependants which was then declined by the defendant.

The court examined whether this constituted an unjustified discrimination. With effect from January 1, 2005 a statutory equalization of pensions for registered partners was introduced with the "Act to revise civil partnership law" and equated the registered partnership with marriage in the state pension scheme.

According to the Federal Labour Court, the defendant’s refusal to pay a provision for dependants was not unlawful since the plaintiff’s partner had died before the act to revise civil partnership law had come into force. Therefore the newly enacted prohibition of discrimination did not apply to the case at hand.

Equality of same-sex civil partnerships in survivors' pensions

ECJ, Judgment of the Grand Chamber of 01.04.2008, Tadao Maruko v Versorgungsanstalt der deutschen Bühnen, C-267/06

On 8 November 2001, Mr. M. established a civil partnership with a costume designer pursuant to § 1 LPartG in the original version. His life partner had been insured with the Versorgungsanstalt der deutschen Bühnen (VddB) since 1 September 1959 and paid voluntary continued insurance contributions for periods during which he was not compulsorily insured. Mr M's partner died on 12 January 2005, following which Mr M. applied to the VddB for a widower's pension. The VddB rejected this on the grounds that its statutes did not provide for such a right for life partners.

Mr M. then brought an action against the VddB before the Bayrisches Verwaltungsgericht München, which referred the points of law at issue to the European Court of Justice for interpretation.

The ECJ clarified that a survivor's pension granted under a professional pension scheme such as the Versorgungsanstalt der deutschen Bühnen falls within the scope of Directive 2000/78/EC on equal treatment in employment and occupation.

Furthermore, Article 1 in conjunction with Article 2 of Directive 2000/78/EC precludes a rule such as that in the main proceedings under which the surviving partner does not receive a survivor's pension corresponding to that of a surviving spouse after the death of his or her partner, even though, under national law, the civil partnership places persons of the same sex in a situation comparable to that of spouses in respect of that survivor's pension.

The defendant was subsequently ordered before the VG München to grant the plaintiff widower's allowance in accordance with its articles of association and to repeal the negative decision.

Discriminatory refusal of a trans*sexual police candidate for health reasons - Criticism of the ADS

Administrative Court Frankfurt, judgment of 03.12.2007, 9 E 5697/06

The plaintiff is challenging the refusal to accept him as a candidate for the police prison service for health reasons in 2005. The plaintiff, who was born as a woman, began hormonal treatment in 1991 and had an operative sex change performed in 1992. The police doctor certified the plaintiff in 2005 that he was unfit for police service because of the error 10.3 of police regulation 300 because of dependence on hormone substitution with cycle-dependent fluctuations. The plaintiff brought an action against that before the Verwaltungsgericht Frankfurt.

The Administrative Court of Frankfurt assumes that the requirement of hormone supply to the body is fundamentally suitable for discriminating against transsexual men in a special way compared to other men as well as women. The aforementioned health requirement is always not fulfilled by transsexual men and is therefore suitable for excluding all transsexual men from the police prison service from the outset and thus indirectly discriminating against non-transsexual men. In addition, the plaintiff is to be regarded as disabled in the sense of § 1 AGG because of the lifelong dependence on medicinal hormone supply, which represents a not only insignificant deviation of his physical condition from that of other persons. Since the defendant country bases its refusal directly on this particular deviating circumstance in the person of the plaintiff, there is also direct discrimination on grounds of disability.

According to the court's decision, however, the discrimination against the plaintiff on the basis of his trans*sexuality and disability is justified, since it seems plausible to the court that the police's legitimate aim in rejecting him is to ensure that only those applicants who are fully operational at all times due to their constitution, including their hormonal constitution, meet the particularly high demands of the police enforcement service.

However, the court has disregarded the fact that the hormone balance of trans*people with hormone substitution is generally more "norm-compliant" than that of non-transgender persons. (Federal Anti-Discrimination Office, brochure on "Discrimination against Trans*Persons, especially in Working Life" by Jannik Franzen and Arn Sauer, p. 27)

ECJ judgements:

Equal supplementary pension for same-sex union and marriage (Römer)

Subject of the proceedings were provisions of the Hamburg complementary pension law (German: Hamburgisches Zusatzversorgungsgesetz). It rules that a more favourable calculation of the amount of pension in comparison to the other recipients of the supplementary pension is applied for not permanently separated spouses, but not for life partners.

Mr. Romans saw this as an infringement of Directive 2000/78/EC with regard to its prohibition of discrimination laid on grounds of sexual orientation.

The Court points out that the finding of discrimination requires that the situations in question are comparable.

The Court states that the life partners, even though their situation is comparable with that of a married couple, experienced a less favourable treatment that can not be explained by factors such as income, the existence of children or the economic needs of the spouse / partner. It was therefore concluded that there has been discrimination based on sexual orientation and the benefits from the additional supply for the registered partner may be claimed.

CJEU verdict of 10 May 2011 - Case C-147/08