In its judgment of January 26, 2022, 24 U 19/19, the Higher Regional Court of Karlsruhe had to decide whether the absence of a "diverse" gender option in an online shop gives rise to a claim for compensation for the affected individual. A person with a non-binary gender identity could only select between "male" and "female" in the defendant's online shop. The "diverse" gender option was not available. Consequently, due to the violation of the General Equal Treatment Act (AGG) and the infringement of their general right to personality, the plaintiff sought, among other things, damages totaling €2,500.00.
Are "Ms." and "Mr." sufficient as forms of address in an online shop?
The Higher Regional Court ruled that the absence of a "diverse" gender selection option constituted direct discrimination against the plaintiff based on gender, prohibited under the General Equal Treatment Act, in the context of establishing a civil law contractual relationship within a so-called mass transaction. This is because the plaintiff – unlike individuals identifying as male or female – could not complete the purchase process without providing information in the designated field that did not align with their own gender identity. This also infringed upon the plaintiff's general right to personality, specifically its protection of gender identity.
Can damages be claimed if a third gender option is unavailable?
The Higher Regional Court ruled that a violation of the General Equal Treatment Act due to the absence of a third gender option does not automatically result in a claim for damages for the affected individual. A claim for damages requires a severe violation of the prohibition of discrimination, one that reaches a certain intensity of degradation and marginalization. However, these conditions were not met in the specific case at hand. The discrimination occurred solely in the private sphere, not publicly, and was therefore considered less severe. The defendant's degree of fault was thus deemed minor. It was evident that the defendant's intention was not to demand gender identity information from a prospective buyer. The sole purpose of the selection was to facilitate a correct form of address for the ordering party, customary in customer interactions, during the subsequent processing of the mass transaction. Moreover, the defendant had already endeavored to address the plaintiff's concern by modifying its website following an initial complaint.
The decision is legally binding.
Source: Higher Regional Court of Karlsruhe Press Release of January 26, 2022 (2/22)
GoldbergUllrich Attorneys-at-Law 2022
