Structure and Participation: On the Significance of the ‘Third Option’ for the Equality Guarantee

Nora Markard

University of Hamburg

In its decision on the “Third Option,” the German Federal Constitutional Court has recognized gender diversity beyond the male/female binary for the first time. As part of the Symposium, this contribution will focus on the significance of this decision for the constitutional non-discrimination guarantee. For the Court has, for the first time, not only recognized gender identity as part of the general right to personality (Allgemeines Persönlichkeitsrecht), but also under the non-discrimination clause of Article 3(3) of the Basic Law (GG). But the decision’s significance does not exhaust itself in a wide interpretation of the concept of “gender” in Article 3(3). It also clarifies the normative structure of  Article 3(3), which has been disputed since the advent of the Basic Law in 1949. In doing so, the Court opens up the potential of Article 3(3) for combating structural discrimination beyond the category of gender.

“Gender” is more than men and women

While “gender” as a protected category can be found in numerous covenants and constitutions, the same is true neither for gender identity nor for sexual orientation—at least as far as the wording goes. In international treaties especially, non-exhaustive lists make it possible to legally recognize unwritten categories of discrimination. But one’s self-attribution and sexual orientation can also be understood as dimensions of “gender”; this was the position of the UN Human Rights Committee in Toonen and of the European Court of Justice in P. v. S. Laura Adamietz has shown with great clarity that this is a convincing approach both from the perspective of gender studies and from a doctrinal legal point of view.

In its transsexuality jurisprudence, the Federal Constitutional Court has so far limited itself to recognizing gender identity as part of the general personality right under Article 2(1) in conjunction with Article 1(1) GG, and to approximating it to the categories specially protected in the non-discrimination clause of Article 3(3) GG within the general equality guarantee of Article 3(1) BL (“All persons shall be equal before the law”), thereby applying a heightened standard of scrutiny. Now, it has for the first time addressed the self-assignation to a gender within the ambit of Geschlecht (denoting both sex and gender) in Article 3(3) GG. It has thereby explicitly recognized that “gender” in Article 3(3) encompasses more than just “men and women,” the terms used in the gender equality clause of Article 3(2) GG (paras. 60 ff.). At the same time, it has conceptualized gender affiliation in everyday life as the basis of comprehensive “expectations” that are “directed at the external appearance of a person, their upbringing or their behaviour” (para. 39, all translations from the decision mine).

In this way, “gender” is presented as a complex of social dimensions that have to be navigated in a society that continues to be geared toward two genders and a heterosexual lifestyle—smoothly for some, with great obstacles for others.

Exclusion from mainstream as disadvantage

These obstacles are the doctrinal starting point of the Court’s explanations on Article 3(3). They begin with the following short statement (para. 57):

“Section 21(1) no. 3 taken with section 22(3) of the Civil Status Act disadvantages persons on the basis of gender who are not of the male or female gender and who permanently identify with another gender.”

But the following remarks are packed with novelty: The Court illustrates how the normalcy that remains invisible for most of us in our society works to systematically and structurally exclude others. Everyone for whom the choice between the male and female gender poses no difficulty can be entered into the civil status register in accordance with their gender. Everyone who belongs to neither of these genders cannot. Such persons have to “either accept an incorrect assignation to one of the two mentioned genders or an entry that creates the impression that they have no gender” (para. 57). This, the Court concludes, means that they are treated unequally and disadvantaged on the basis of their gender.

Anyone who has never had a problem with their gender assignation may tend to underestimate the significance of this disadvantage. But a person’s gender—at least currently, as the Court points out—determines not only the way a person is addressed or the “expectations directed at the external appearance of a person, their upbringing or their behavior” (para. 39). The civil status entry also has considerable legal significance (ibid.):

“Thus, for example, the German passport … and the electronic health card … contain an entry on the person’s gender. The production of a birth certificate or of a copy from the birth register before public authorities, courts or third parties is legally required or at least practically necessary in a variety of situations in life; both contain a gender entry as a rule …. Among others, presenting a birth certificate is required to enroll at a university, to sign up for exams, state examinations or a PhD, to apply for public service or civil servant status, as well as for certain apprenticeships.”

In all of these situations, persons whose passport, health card or birth certificate shows no gender or the wrong gender are confronted with the fact that they are subject to expectations that they cannot and/or do not want to fulfill—unlike all of those persons who fit into the binary system of male and female without problems—or that they appear as a genderless blank.

This disadvantage, the Court affirms, must be remedied. Notably, the Court repeatedly points out that the legislator is absolutely free to simply abolish the gender entry. Indeed, one may question why the state should continue to divide its citizens by gender. Individuals can certainly live their gender without an entry in a public register, and they do not need this entry either to know whether they are man or woman, a third or something in between. A state interest in ordering things, which the Federal Supreme Court had affirmed (there, para. 27), did not suffice for the Constitutional Court to justify a gender entry limited to male and female (paras. 53–55).

An independent meaning for Article 3(3)

The decision also promotes clarity with respect to the relationship between Article 3(2) and 3(3) of the Basic Law. While pursuant to Article 3(3), “no person shall be favoured or disfavoured because of sex [or gender] …,” Article 3(2) proclaims: “Men and women shall have equal rights.” Given the ubiquity of legal discrimination between men and women in 1949, especially on the area of civil law, this was obviously meant as a counterfactual claim—not just with a view to the transition period provided for in Article 117(1) GG.

In her groundbreaking 1991 thesis on the fundamental right to equality, Ute Sacksofsky—as well as others, such as Sibylle Raasch or Vera Slupik—already demonstrated that this provision, in its systematic relationship to the prohibition of discrimination on the basis of gender in Article 3(3), can only be understood as a mandate to advance women. One year later, this was also the view of the Federal Constitutional Court (who had so far been pondering) in its 1992 Night work decision: Article 3(2) sets out an equality guarantee and extents it to societal reality. As a clarification, the constitutional legislator added a second sentence to Article 3(2) in 1994: “The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.”

Since then, however, the Court has treated the location of the prohibition of discrimination on the basis of gender in a rather undogmatic fashion; it was sometimes allocated to Article 3(2), sometimes to Article 3(3) (especially recently), sometimes to both paragraphs. It thereby left open whether the jurisprudence developed for gender discrimination was unique to paragraph 2—dealing only with men and women—or germane to paragraph 3, making it available also for other categories of discrimination listed there (in addition to Geschlecht, it also lists “parentage, race, language, homeland and origin, faith, or religious or political opinions”). This question arises in particular for the prohibition on indirect discrimination, which the Court—just as the CJEU—has long recognized for gender, but whose application for the other categories remains disputed (and I will turn to this in a moment).

Now, the Court has unequivocally classified gender discrimination—here: on the basis of a gender that is neither male nor female—as a violation of “the special prohibition on discrimination of Article 3(3) first sentence GG” (para. 56). Moreover, it has clarified the relationship between the Article’s paragraphs 2 and 3 (para. 60): “In particular, Article 3(2) GG has an independent meaning in relation to Article 3(3) first sentence GG, which explains the narrower phrasing of paragraph 2,” which speaks not of “gender” but of “men and women.”

“The normative content of Article 3(2) GG extending beyond the prohibition of discrimination in Article 3(3) GG consists of the fact that it sets out an equality guarantee and extends it to societal reality (BVerfGE 85, 191 <206–7>). Since 1994, Article 3(2) second sentence GG has been emphasizing the actual enforcement of equality in gender relations.”

This was indeed already said in the Night work decision (BVerfGE 85, 181). The novelty lies in the reverse perspective: The prohibition of gender discrimination in Article 3(3) has an independent meaning in relation to Article 3(2)—with far reaching consequences.

Article 3(3): Protection also from structural discrimination

Locating the prohibition of gender discrimination in Article 3(2) first sentence gives the Court an opportunity to further determine its content (para. 59):

“The purpose of Article 3(3) first sentence GG is to protect the members of groups structurally prone to being discriminated against (cf. BVerfGE 88, 87 <96>; Osterloh/Nußberger, in: Sachs, GG, 7th edn. 2014, Art. 3, marginal nos. 236, 244).”

Not only Article 3(2) is therefore directed against structural discrimination with its equality mandate, Article 3(3) also targets this type of exclusion—and not just direct, intentional discrimination.

Indeed, among the possible criteria for differentiation, Article 3(3) singles out those that, in the Nazi past—a very recent past in 1949—had served as grounds for ostracism, persecution and murder, and that continued to be relevant: gender, parentage, race, one’s first language, homeland and social origin, faith, religious and political opinions. The attention for such “threat potentials in equality law” (gleichheitsrechtliche Gefährdungslagen), as Ute Sacksofsky has put it, are of course historically contingent; thus, sexual orientation is absent from Article 3(3), and disability was missing until 1994—both also grounds for persecution under the Nazi regime.

In human rights discourse, such threat potentials are also described as vulnerability—a terminology that the Court takes up when it sums up (para. 59):

“The vulnerability of a person whose gender identity is neither man nor woman is particularly high in a society predominantly operating in accordance with a binary gender pattern.”

These two quotes are worth dwelling on: “structural” threat of discrimination, “vulnerability … in a society predominantly operating in accordance with a binary gender pattern.” Here, societal structures are being described as obstacles for individuals who do not fit into the mainstream—and who therefore require an explicit protection against discrimination. The Court adds, again in the words of the Night work decision: Gender can also “not be used as a basis for a legal differential treatment … if the provision is not geared toward a differential treatment forbidden by Article 3(3) GG, but primarily pursues other objectives (BVerfGE 85, 191 <206>; standing jurisprudence).” A discriminatory intent is thus not required—this leaves the door to indirect discrimination wide open.

A door opener for indirect discrimination

Where the disadvantaging effect becomes the central point, an effective prohibition on discrimination must also include indirect discrimination. It is no less effective than intentional, direct discrimination, resulting as it does from longstanding, widespread societal structures, in which certain divergences are not provided for—be it gender-specific careers or double burdens that are overlooked where the “normal employee” serves as a standard, be it the societal adjustment to the heterosexual gender binary, which knows no third option.

The concept of indirect discrimination was first developed by the CJEU, who was able to rely both on the work of the US Supreme Court and on its own jurisprudence on economic freedoms. In the 1986 Bilka case, the CJEU first declared the disadvantageous treatment of part-time work discriminating because it mainly affected women. By now, the prohibition of indirect discrimination has become a regular part of the EU directive on non-discrimination.

The Federal Constitutional Court has long recognized indirect discrimination of women, but had so far left open whether this line of jurisprudence was particular to Article 3(2) GG. Thus, it left open in a 1999 chamber decision whether the obligation to participate in ethics classes for children who do not participate in—voluntary—religious instruction constitutes indirect discrimination on the basis of faith. A possible indirect discrimination in relation to Eastern German income biographies failed one year laterbecause the Court interpreted the category of “homeland” (Heimat) in a historic perspective, reducing its scope to persons of German origin displaced from the former Eastern provinces of the Reich (Justices Kühling, Jaeger and Hohmann-Dennhardt dissented).

In the legal literature, the application of indirect discrimination to Article 3(1) GG has been subject to dispute. Few scholars have argued in favour, some only apply the concept within the ambit of Article 3(1) GG, where a lower level of scrutiny applies. However, the level of scrutiny increases where the differentiation criteria approximate the categories listed in Article 3(3) GG due to their immutability or personal significance—also in the area of indirect discrimination, as the Court has shown with respect to sexual orientation.

The fact that indirect discrimination has a place in Article 3(3) GG as well, however, is already clear from a 2004 chamber decision from the Court’s Second Senate on the cost of translators for non-German speaking defendants during a criminal investigation: “Art. 3(3) first sentence GG prohibits any discrimination on the basis of language or other criteria listed there. … The categories named in Art. 3(3) first sentence GG can generally neither directly nor indirectly be used as a basis for a legal unequal treatment” (para. 17, emphasis added)—again citing the Night work decision! That the cost of translation are generally not to be borne by the defendant was “suitable to counteract a discrimination of the persons concerned within the meaning of Art. 3(3) first sentence GG” (para. 22).

It does indeed appear doctrinally consistent to not treat the discrimination category of gender differently than other categories—as the example of language demonstrates, here, too, there can be structural exclusion with effects that can be just as grave as direct discrimination.

On this basis, the legislator will have to engage with the factual diversity of society much more than it has—for where societal and legal structures produce exclusionary effects along the discrimination categories of Article 3(3) GG, justification has to be reviewed much more closely, or a reasonable accommodation made to prevent discriminatory effects. The Court thereby has not only strengthened rights to diversity and against adaptation pressure. It has also formulated crucial constitutional requirements for truly equal participation in a plural society.

By Professor Nora Markard, Professor of Public Law, International Law and Global Constitutionalism at the University of Hamburg. This post is part of a symposium on the ‘Third Option’  decision which was originally published on Verfassungsblog.