On 21.06.2022, the Higher Regional Court (OLG) of Frankfurt am Main finally ruled in the case against Deutsche Bahn that a mandatory selection from the two forms of address "Mr." or "Ms." discriminates against non-binary people. This direct discrimination is inadmissible under the General Equal Treatment Act (AGG).
You can find out what this groundbreaking ruling means for online stores, websites, newsletters and other digital services here.
A non-binary trans* person has filed a lawsuit because Deutsche Bahn requires a binary form of address, i.e. "Mr." or "Mrs.", when selling tickets online. The Higher Regional Court (OLG) in Frankfurt am Main has now ruled that this discriminates against non-binary people under the AGG. Accordingly, Deutsche Bahn has been obliged to refrain from discriminating against non-binary persons when using the company's services by forcing them to use the form of address "Mr." or "Mrs." from 1 January 2023.
With immediate effect, Deutsche Bahn must refrain from addressing the complaining non-binary person incorrectly (i.e. with a male or female form of address) when issuing tickets, in customer service letters and in advertising. This also applies to stored personal data.
In addition, Deutsche Bahn must pay the plaintiff compensation in the amount of €1,000.
In principle, it is now clear that non-binary people may not be discriminated against and excluded from use by the mandatory selection of the form of address "Mr." or "Mrs.". Accordingly, it is now easier to claim this right.
If you collect and use salutations, e.g.
- in the checkout in your store
- when registering for the newsletter
- when creating a profile or in the settings
- when issuing tickets or cards
- in the application process
- when communicating with your customers or employees
- in the HR software or payroll accounting
you should now check this and ensure that this is done in accordance with the law and that people of all genders are included are included.
The two most common solutions for continuing to collect salutations are as follows:
1. Extension of the selection to include "no gender salutation"
The existing recording of the salutations "Mr." or "Mrs." is extended to include the option "no gender salutation". People who select this will be addressed in a gender-neutral way, e.g. with "Hello first name last name" or "Hello first name".
Important 1: Please do not offer "diverse" as a selection, as this is not a form of address, but a gender entry in the civil status. You do not write "Hello male Alex Ingabire" or "Hello female Alex Ingabire".
Important 2: If a person selects "no gendered form of address", do not write "Dear Ms/Mr Alex Ingabire". This is again binary and does not suit most non-binary people.
2. adding a free text to the selection
The most inclusive option, as each person can decide for themselves which form of address is appropriate. Of course, this could still be classics such as "Dear Professor" or "Mr.". It should also be possible to leave it blank so that no gendered form of address is used. However, people also have the option of choosing unknown salutations such as "Dear Sir or Madam".
The secret trick: Don't raise the salutation
If no salutation is raised and everyone is simply addressed neutrally, no one will be addressed incorrectly. It may feel a little strange at first and cause reactions such as "But we need that because XYZ ...!". In fact, however, we can manage in almost all situations and contexts without addressing people. This can reduce complexity in IT systems and less data is stored, which is entirely in line with the data minimization requirements of the GDPR.
Do you need help with the changeover? We have already helped some companies and large organizations such as the city of Kiel to record salutations inclusively and legally compliant in the future.
We are happy to help you too.
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