Germany: Accounting for the Third Gender in Labor Law

Legal recognition of the third gender requires management adjustments

By Jan-Ove Becker and David Wagner September 30, 2019
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Germany: Accounting for the Third Gender in Labor Law

​About 80,000 to 120,000 Germans are intersexual, which means their chromosomes don't clearly identify them as male or female. This third gender, as it is now known, was legally recognized in October 2017 by the German Federal Constitutional Court. 

In its decision, the court ruled that the constitutional right of equality and general right of personality are violated when the law requires people who can't be biologically designated as either male or female to register their personal status—including their sex—with German authorities but are allowed no gender option other than female or male. 

The decision drove the Bundestag—the German federal parliament— to act, and since Dec. 22, 2018, people can register their sexual identity as "diverse."

For the workplace, the potential impact of these developments includes necessary changes to job postings, changes in HR administration and contract design, and the introduction of gender-neutral restrooms. This article briefly reviews the most significant issues that have become apparent in German labor law since the recognition of the third gender.

Job-Posting and Application Procedures

Employers may not discriminate against applicants because of gender or sexual identity, and they must make job advertisements gender-neutral. Employers should review their job-posting practices to ensure they are gender-neutral or otherwise accommodate the third gender.

Adjusting job postings may help to avoid potential discrimination claims, because advertisements that fail to take the third gender into account may lead some to assume discrimination against this gender. Different gender phrasings may be used, as well as gender-neutral generic terms and job titles.

Employers can also consider including an extension using brackets. For example, based on the term "inter/diverse," different additions such as "(m/f/d)," "(m/f/i)," or occasionally "(m/f/x)" have been seen. "I" stands for "intersexual," "d" stands for "diverse," and "x" is a symbol for "nonbinary." In sum, employers are encouraged to express in their job postings that they are open to all people, regardless of gender.

Due to the increased use of online applications, adjustments are also necessary to recognize the third gender in the application process. Online questionnaires or applications that give applicants the choice to identify as only male or female or as "Mr." or "Mrs." may appear to discriminate by excluding a third gender option. Employers should avoid using predefined gender and salutation choices.

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HR Administration and Contract Design

In addition, personnel files should not require that a worker enter only male or female as an identity. Much of the HR administration software available today offers other choices, such as "no gender" or "diverse."

Employers may also need to review and revise employment and collective bargaining agreements, as well as agreements with works councils. For example, the following explanation can be included: "If the male designation is used in the following language, it is understood that female and intersexual persons are included."

Restrooms

According to German occupational health and safety regulations, restrooms for men and women must be separate or allow for separate use. To date, however, these regulations have not been updated to include the third gender.

It is unclear if employers will have to make physical changes to bathrooms, but separate bathrooms for third-gender staff would become necessary if the legislature required it.

Introducing unisex, gender-neutral bathrooms, as is already customary in other countries, is also conceivable. For now, employers should consider allowing third-gender workers to use either restroom and marking the rooms accordingly, for example, by using the terms "male/diverse" and "female/diverse."

These developments afford employers an opportunity to adapt their practices, including recruiting, maintenance of personnel files and restroom protocols. In doing so, companies can send a clear and unambiguous signal of tolerance and position themselves as modern employers.

Jan-Ove Becker is a partner and David Wagner is an associate in Littler's Hamburg, Germany, office. Both are members of the firm's international employment law practice. 

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