Is the mandatory selection of a form of address unlawful?

Does it infringe the right to personal dignity of persons with non-binary gender identity when they must choose between the forms of address "Mrs"/"Mr" when concluding contracts online? The Regional Court (LG) Frankfurt am Main addressed the question of whether the mandatory selection of a form of address is unlawful.

An entrepreneur who offered his products and services via the Internet was sued by a private individual. The claimant has a non-binary gender identity. They sought compensation in monetary form and an injunction against the entrepreneur because they considered themselves to have been discriminated against on the grounds of their gender identity when using the entrepreneur's services and communicating with them.

The person saw the reason for the alleged discrimination in the merchant's online presence. A prerequisite for purchase was the mandatory selection of a form of address. The buyer thus had to decide decisively for either "Mr" or "Mrs". A gender-neutral form of address was not available. In accordance with the selection made of either "Mr" or "Mrs", the entrepreneur addressed customers in communications during the processing of purchases made, in complaints or in advertising mailings.

The person initially sent a cease-and-desist letter to the entrepreneur, demanded the issuance of a declaration of intent subject to a penalty clause, and demanded payment of monetary compensation in the amount of EUR 5,000.00. After the cease-and-desist proceedings were unsuccessful, the person filed a complaint with the LG Frankfurt a. M. The entrepreneur challenged a judgment by default issued in written preliminary proceedings in favour of the claimant by means of an objection and requested dismissal of the complaint.

General Equal Treatment Act not violated

The LG Frankfurt a. M. (Judgment of 03.12.2020, Az. 2-13 O 131/20) ruled in favour of the non-binary person. The court only refused to award the claimant a claim for monetary compensation.

The court first made it clear that the claim for an injunction against the entrepreneur cannot be derived from the General Equal Treatment Act (AGG). Such a breach was already not given because no disadvantage had occurred in the conclusion, performance or termination of the contract.

The claimant was not disadvantaged either with regard to the conclusion (contract was concluded) or the performance (contract had no less favourable content) or termination of the contract.

Mandatory selection of form of address violates right to personal dignity

However, the LG Frankfurt a. M. awarded the claimant a claim for an injunction in accordance with the general rules of the BGB.

The court first established that the general right to personal dignity also protects, among other things, gender identity, "which is regularly a constituting aspect of one's own personality". Since the entrepreneur had forced the claimant to choose one of the two unambiguously gender-specific forms of address (Mrs/Mr), the claimant had been violated in their right to personal dignity. This followed from the fact that the person had to necessarily assign themselves to one of these genders, which, however, did not correspond to their identity.

Furthermore, the court attached no significance to the fact that a gender was still entered in the claimant's birth certificate for the legal dispute. It was sufficient if a person themselves permanently – as in the present case – assigned themselves to a gender identity, such as non-binary gender identity.

It was also irrelevant for the question of reasonableness for the entrepreneur in relation to the claimant that the group of persons with non-binary gender identity is very small compared to the total population.

Conclusion

In order to avoid corresponding disputes, website operators should refrain from requiring a form of address where possible or add a further option for selection for people with non-binary gender identity.