Auswirkungen der Anerkennung des dritten Geschlechts im Arbeitsrecht

In December 2018, the Bundestag implemented the requirements of the Federal Constitutional Court and recognized the third gender in addition to the female and male genders. Those affected who have sexual characteristics that cannot be clearly assigned biologically now have the opportunity to be entered in the civil status register as inter/diverse. However, this option only exists if the ambiguous assignment to male or female gender can also be medically proven.
This new legal regulation also has a significant impact on labor law.
As of January 1, 2019, employers must pay particular attention to the following:
Inclusion of the third gender in the job advertisement
At the latest after the General Equal Treatment Act (AGG) comes into force, employers will state in the job advertisement that (of course) both female and male applicants are eligible. This is usually indicated by the abbreviation (m/f) made clear.
Since the legal system is now not based on the dual gender, but also expressly recognizes the third gender, this must also be taken into account in the job advertisement in order to avoid the appearance of discrimination on the basis of gender.
It should not go unmentioned that in the labor law literature it is sometimes argued that by specifying (m/f) the employer should make it sufficiently clear that gender is not important to him when hiring. However, it is very questionable whether this view will prevail in practice.
In order to reduce any risks, it is therefore recommended to also include the third gender in the job advertisement and after the job title all three genders, for example using the following abbreviation (m/f/x) or (m/f/i) to list.
Check the salutation of the employee concerned
Any appearance of discrimination should also be avoided in the existing employment relationship.
If the employer is aware that employees are also employed who are neither male nor female, the desired form of address should be determined in a confidential conversation.
Alternatively, it is also conceivable to forego a gender-related salutation.
If the employer uses forms in which the employee has to indicate their gender, all three genders must also be available to choose from.
Creation of separate sanitary facilities
Furthermore, employers are obliged to provide separate sanitary facilities for the affected employees; this applies at least if the employer is aware that a person is employed who can be assigned to the third gender. Therefore, sanitary facilities must be set up either only for employees of the third gender or exclusively so-called unisex toilets.
New dress code
If there is a dress code in a company that requires different clothing for male and female employees, this must be adjusted. It is recommended to also create clothing regulations for employees of the third gender so that the appearance of discrimination does not arise here either. Alternatively, there is also the option of specifying a uniform dress code for all employees - regardless of their gender.
The above points only serve to raise awareness among employers and are by no means exhaustive. Rather, it is to be expected that numerous questions will arise in the near future regarding the treatment of employees who belong to the third gender, and these questions will also concern the courts.