Male, Female, or Divers? The introduction of the third sex and its potential impact on employment law

By Gertrud Romeis, Christian Wirtz, Kathrin Kruse, Benjamin Karcher, Dr Catharina Klumpp

10-2018

Parliament has until the end of this year to amend the German Civil Status Act (the Act) to include reference to the third gender: 'divers'. This comes following the decision of the German Constitutional Court (Bundesverfassungsgericht, BVerfG) back in October 2017, that lack of a third gender in the Act violates the rights of those who do not identify themselves to either the male or female sex.

Similar to the Act, many other laws and regulations refer only to a binary system. As an absence of reference to a third gender can infringe an individual's right to equality under Article 3(3) of the German Constitution and their general right to privacy, it is expected that many more amendments will follow suit. Here we explore the possible impact of the third gender on labour law regulations and how this could impact daily workforce management.

Discrimination in job advertisements

The decision changes the requirements for wording of job advertisements. The General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz - AGG) requires that employers do not discriminate against applicants on the basis of their gender or sexual identity. According to para. 22 AGG, there will be a suspicion of discrimination if gender is not addressed properly in a job advertisement (for example, describing the potential candidate as a specific gender).

In order to prevent discrimination, employers should ensure that job advertisements do not exclude applicants of the third sex. For this purpose, a gender-independent designation can be used or the addition of "(m/w/x)", "(m/w/i)" or "(m/w/d)" can be added to the job title; “i” stands for "intersexual" and “d” for "diverse". Employers may also add "*" or "_" to address the third gender (e.g. "Mitarbeiter*innen" or "Mitarbeiter_innen"). Alternatively, the salvatoric clause "We are happy about applicants of any gender" can be added.

Works Councils

The introduction of a third gender may lead to an amendment of the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) in respect of the need to ensure a gender balance on works councils. The BetrVG currently only assumes two sexes so the law could be amended to include the third gender. However, it may be difficult for employers to meet the requirements as there could be a limited percentage of individuals identifying as the third gender in their organisation. Either way, employers should make efforts to ensure that works councils are as representative as possible.

Workplace facilities

The legislator may have to change the regulations regarding the workplace. Currently employers have to provide sanitary facilities for men and women. In future, facilities for persons of the third gender may be required as has been the case in several other countries. For example, some US schools have restroom-doors with the sign "inclusive", "gender neutral", "whichever" or signs on them with figures wearing a skirt only on one side.

Dress codes

Employers will have to adapt gender-specific dress regulations where specific dress codes are required (e.g. flight attendants or bus drivers).

Official documentation

Salutations in official letters to employees like “Sehr geehrte Frau, sehr geehrter Herr” ("Dear Ms, Dear Sir") or “ihre/sein” ("her/his") could also prove problematic. Employers could add "*" for the third gender (“Sehr geehrte*r Frau*Herr”).

Gender quotas

Meeting the “gender quota” might be another problem for employers. Since May 2015 there is a legally required “gender quota” for the filling of management positions. The intended purpose of the quota is the equality of women and men in society, politics and business. Under the given circumstances this quota could lead to demand to fill management positions with persons of the third gender as well.

Many of the above changes may be a waiting game, but employers should tread carefully and take efforts to ensure they are not discriminating against individuals identifying as the third gender. Adapting existing practises early presents an opportunity for employers to take a progressive stance and potentially steal a march on competitors in this regard.