Germany. On 14.12.2021 (Ref.: 24 U 19/21), the higher regional court in Karlsruhe (OLG Karlsruhe) ruled that a person of non-binary gender identity is dicriminated and violated in her general right of personality, if the person only can choose between “Ms” and “Mr” when shopping online.

Action based on the possibility of selecting only two genders

The plaintiff, in whose civil status data at the registry office “no indication” is entered under the heading “gender”, had ordered various items of clothing on the site of the defendant clothing company in autumn 2019. For registration and completion of the ordering process, a selection between the two salutations “woman” and “man” was required. A gender-neutral selection option did not exist at that time. Since the order process could not be completed without selecting one of the two forms of address, the order process was completed by selecting the form of address “man”. Based on the facts of the case, the plaintiff claimed injunctive relief and compensation in the amount of € 2,500. The action was not successful either out of court or before the Mannheim Regional Court. The OLG Karlsruhe has now confirmed the result of the judgement dismissing the action.

Violation of the general right of personality

However, the court found in favour of the plaintiff and affirmed a violation of the general right of personality and gender discrimination. The plaintiff had had to make a statement at the end of the purchase process that did not correspond to his or her gender identity. The final choice between the feminine or masculine form of address constituted a direct discrimination on grounds of gender, prohibited by the General Act on Equal Treatment (AGG), in the establishment of a civil-law obligation in the context of a mass transaction. The plaintiff’s general right of personality had been violated in its manifestation of the protection of gender identity.

Discrimination not intensive enough

The legal dispute was nevertheless lost. Since the company in question had in the meantime added the form of address “Divers/no form of address” to its selection options in addition to the terms “woman” and “man”, there was no danger of repetition. Thus, the claim for injunctive relief failed. The court also denied a claim for damages. The reason for this was the lack of intensity of the discrimination against the plaintiff. Not every violation of the general right of personality would trigger a claim for monetary compensation. Rather, a serious violation of the prohibition of discrimination in a certain intensity of disparagement and rejection would be required. The discrimination was also less severe because it occurred in the private sphere and not in public. In the court’s view, the company’s degree of fault was also too low. It would not be important for the company to require a person interested in buying to provide information about his or her gender assignment. The information was only intended to enable the person placing the order to be addressed in a manner customary in customer dealings, in the context of the handling of a purchase process in mass business. The court’s assumption was also supported by the fact that the company already made efforts to adapt its website after the first complaint.

Recommendation

The ruling is not the first of its kind and illustrates the growing importance of a gender-neutral approach in E-commerce. Similar cases will follow. In order to avoid trouble, it is recommended to include an additional salutation option “Divers/no specification” or to make the salutation optional. Also, after selecting a salutation, the address should be chosen in gender-neutral polite form, e.g. “Dear (first name last name)”.