One, two, or three… ? Gender neutrality in employment law

According to the German Federal Constitutional Court, from January 1, 2019, gender neutral individuals – referred to as intersexual – will have the option of registering as “inter” or “diverse” in civil status registers. The actual setup raises questions, its effects on employment law are manifold.

Advent describes the season in which Christianity prepares for the celebration of the birth of Jesus Christ, Christmas. Christians celebrate the birth of Jesus as the Incarnation of God, His Father. In the Hebrew Bible, however, God was neither male nor female, but both.

According to the October 10, 2017 judgement of the Federal Constitutional Court (Case 1 BvR 2019/16), there is a third gender that cannot be assigned to either male or female. From January 1, 2019, it will be possible for intersexual individuals to be entered as “inter” or “divers” in German civil status registers.

The Federal Constitutional Court holds that “persons who cannot be permanently assigned to either the male or the female sex ... are violated in both fundamental rights if civil status law forces them to register their gender but fails to permit a positive gender entry other than female or male.”

The Federal Constitutional Court decision has a direct effect on employment law in all sectors, for example with respect to clothing regulations, minority quotas, or the wording of job advertisements. To prevent discrimination in legally compliant manner, German job advertisements should no longer be limited to brackets (m/f), but be extended to include the abbreviations “div.” or “int.”

Possible discrimination could also occur in the context of works council elections. Under Section 15(2) German Works Constitution Act, the gender that is a minority in the workforce must be represented in the company according to its numerical ratio. The minority gender is calculated according to what is referred to as the d'Hondt highest averages method: For example, in a company with 21 employees, at least six intersexual individuals would have to be employed to obtain a minimum seat on the works council. Since only just under 0.2% of the German population is intersexual, it is highly unlikely that six intersexual individuals will work in a 21-person company. So as not to counteract the protection of minorities, however, the provision could be interpreted with respect to the third gender to the effect that there can also be several minority genders and thus several minority quotas in a company.
The exact form will raise some questions in the coming year.

Your contacts are the experts from the Employment Law Practice Group. Johan-Michel Menke and his team specialize in works constitution law, reorganization, and insolvency labor law.