Discrimination of intersex people in working life:
2020.11.12

Anti-Discrimination Agency unveils studies and legal opinions on the “third option”

Intersex people face discrimination in the workplace on the grounds of their gender identity. At the same time, although three years have passed since the Federal Constitutional Court’s ground-breaking decision to introduce the civil status “diverse” in civil status law, public and private employers still have some catching up to do in accommodating gender diversity. This follows from a survey among inter* people and two recent opinions that were presented on Thursday on the occasion of the Federal Anti-Discrimination Agency’s specialist conference Männlich, weiblich, divers – Neue Perspektiven geschlechtlicher Vielfalt in der Arbeitswelt (“Male, female, diverse - new gender diversity perspectives in the world of work”).

According to initial results of the target group-specific study “Inter* im Office?!“ (“Inter* at the office?!”) carried out by the Cologne Institute for Diversity and Anti-Discrimination Research (IDA) led by Prof. Dr. Dominic Frohn, the majority of the 32 inter* employees who took part in qualitative/quantitative interviews have experienced discrimination in the workplace. Moreover, the majority also report an adversarial working climate in teams and organisations. Specifically, interviewees complained about inadequate support from their employers when facing discrimination, the lack of appropriate sanitary facilities and the refusal to include them in letters and forms through use of gender-equitable language.

According to the concurrently presented opinion “Geschlechterdiversität in Beschäftigung und Beruf. Bedarfe und Umsetzungsmöglichkeiten von Antidiskriminierung für Arbeitgeber*innen“ (Gender Diversity in Employment and Occupation. Employers’ duties and options to implement anti-discrimination policies”), a gender diversity-inclusive corporate culture and personnel management as well as the encouragement of gender-inclusive language are of central importance for inclusion in employment and occupation. According to the study authored by Dr. Tamás Jules Fütty, Marek Sancho Höhne and Eric Llaveria Caselles, far-reaching sensitisation measures for gender-diversity are absolutely crucial. The opinion provides concrete recommendations relating to corporate culture, recruitment, handling of gender-related data, language and communication, sanitary facilities as well as body, clothing and health.

Moreover, it identified the need to take legislative action in labour law. In their opinion “Jenseits von männlich und weiblich – Menschen mit Varianten der Geschlechtsentwicklung im Arbeitsrecht und öffentlichen Dienstrecht des Bundes (“Beyond male and female – people with variations in sex characteristics in labour law and federal public employment law”), the lawyers Prof. Dr. Anatol Dutta (LMU Munich) and Prof. Dr. Matteo Fornasier (Ruhr-Universität Bochum) make a case for adjusting regulations that relate to gender. This referred especially to regulations that differentiate by gender, without, however, favouring the typically disadvantaged gender. As examples, the authors specifically cite the provisions of the Workplace Ordinance (Arbeitsstättenverordnung) on the setting up of sanitary rooms at the workplace and dress regulations under civil service law. The authors conclude that intersex people are already protected from discrimination under the law as it stands and, in case of pregnancy, are covered by the regulations for the protection of (expectant) mothers.

The Federal Constitutional Court’s decision in favour of the positive gender entry and the implementation of these requirements in the revised Civil Status Act (Personenstandsgesetz ) have far-reaching consequences for employers and the legal order overall,” stated Bernhard Franke, acting head of the Federal Anti-Discrimination Agency in Berlin on Thursday.  Intersex and gender-diverse people frequently report instances of discrimination. Their needs and suggestions must be heard. We know that many companies want to enable their employees with ‘diverse’ civil status to work in a discrimination-sensitive environment. The important thing is to clearly communicate the measures conducive to a non-discriminatory environment, Franke added. 

You can download the studies and initial results of the “Inter* at the office?!” survey (in German) here.

The Federal Anti-Discrimination Agency is an independent contact point for persons affected by discriminatio. It was established in 2006 when the General Act on Equal Treatment entered into force. The Federal Anti-Discrimination Agency does public relations work and research on the topic of Discrimination and offers legal initial counselling for people who have been discriminated against on grounds of ethnic origin, religion, ideology, sexual identity, age, disability or gender.