Does an online shop have to consider the third gender "diverse"?

In its judgement of 26.01.2022, 24 U 19/19, the Higher Regional Court of Karlsruhe had to decide whether the lack of the possibility to indicate the gender "diverse" in an online shop leads to a claim for compensation by the person concerned. A person of non-binary gender identity could only choose between the genders "man" and "woman" at the defendant online shop. The gender "diverse" was not provided for. Because of the associated violation of the General Equal Treatment Act (AGG) and because of the violation of her general right of personality, the plaintiff demanded, among other things, damages in the amount of € 2,500.00.

Are "Ms" and "Mr" sufficient as salutations in the online shop?

The Higher Regional Court ruled that the lack of the option to select the gender "diverse" constituted a direct discrimination of the plaintiff on the grounds of gender, which was prohibited under the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz), when establishing a civil law obligation in the context of a so-called mass transaction. This was because the plaintiff - unlike a person of male or female gender - could not complete the purchase transaction without making an indication in the field provided for this purpose which did not correspond to his or her own gender identity. At the same time, this violated the plaintiff's general right of personality in its manifestation of the protection of gender identity.

Can damages be claimed in the absence of a choice of a third sex?

The Higher Regional Court ruled that the violation of the General Equality Act in the absence of a third gender selection option does not necessarily lead to a claim for damages by the person concerned. A claim for damages requires a serious violation of the prohibition of discrimination, which reaches a certain intensity of disparagement and degradation. However, these requirements were not met in the individual case to be decided in this case. The discrimination had only occurred in the private sphere and not in public and was therefore less severe. The degree of fault of the defendant was therefore to be classified as low. It was obviously not the defendant's intention to require a person interested in buying a product to indicate his or her gender. The purpose of the selection to be made was merely to enable the person placing the order to be addressed correctly, as is customary in customer transactions, in the context of the further processing of the bulk transaction. In addition, the defendant had already endeavoured to comply with the plaintiff's request by changing the website in response to the plaintiff's first complaint.

The decision is final.


Source: OLG Karlsruhe press release of 26 January 2022 (2/22)


GoldbergUllrich Lawyers 2022

Lawyer Christopher Pillat