Germany: Beyond male and female – people with variations in sex characteristics in labour law and federal public employment law

In 2013 and 2018, German civil status law was amended to create the option for people with variations in sex characteristics to not specify their gender or to specify it as “diverse” instead of “male” or “female” in civil status entries. The present study aims to examine the impact of this legislative decision on labour and public employment law. An individual’s gender – especially on the part of employees – is of crucial importance in both areas of law. Both areas of law, however, continue to largely follow a binary gender model, which only distinguishes between male and female. The study seeks to explore which gender-specific norms are applicable to persons with an unspecified or diverse gender entry under the recognised methods of applying the law and which norms require clarification or legal policy decisions by legislators. Not only does the study look at German constitutional law, which was a driving force behind the legal recognition of intersex people, but it also focuses on European Union law. European Union law plays a key role in protecting people against gender-specific discrimination at work. By contrast, the study does not explore the general question of terminological changes to the relevant provisions; this question goes beyond labour and public employment law and already arises in the binary gender system.

• Jenseits von männlich und weiblich – Menschen mit Varianten der Geschlechtsentwicklung im Arbeitsrecht und öffentlichen Dienstrecht des Bundes (2019) 
• Factsheet in English

Report written by Prof. Dr. Anatol Dutta, M. Jur. (Oxford), Munich, Prof. Dr. Matteo Fornasier, LL. M. (Yale), Bochum

Published by the Federal Anti-Discrimination Agency, Germany