The Federal Maritime and Hydrographic Agency (BSH) may not fire an employee because she refused to consistently change an official document. The Hamburg State Labor Court justified this with the employee’s formal status. At the same time, the court indicated that employers could generally require their employees to change their gender in official documents.
The small courtroom in the State Labor Court was so full on Thursday morning that at least a quarter of the visitors had to stand. The whistleblowing platform “Stop Gendering” and the mobilized German Language Association, which filed the lawsuit BSH employee Stefanie Sch. against two warnings and a written termination.
Gendering is about asserting a worldview linguistically, explained Sabine Mertens from “Stopt Gendern” in front of the hall. “You can’t require people to do that by ordinance.”
Stefanie Sch., a doctor of chemistry and radiation protection officer at the BSH, was commissioned to revise the office’s radiation protection instructions and, in the process, to change them by choosing neutral wording or mentioning both genders.
Special feature of radiation protection law
Sh. changed, but not consistently – as she herself says, not the term “radiation protection officer”. When asked “Why?” she says: “Because the regulations didn’t allow it.” This was an internal instruction from the then Federal Ministry for Digital and Transport (BMDV).
From the court’s point of view, it depended on whether Stefanie Sch. received the order in her special role as a radiation protection officer, not simply as an employee. The person responsible for radiation protection should therefore have assigned the task of revising the radiation protection instructions to the radiation protection officer in writing – which was not done.
This is a special feature of radiation protection law, explained Esko Horn, President of the Labor Court. When it comes to radiation protection, a clear delegation of tasks is required.
The BSH’s lawyer, Matthias Ginkel, had also argued that revising radiation protection instructions was not part of the duties of a radiation protection officer. But he drew a different conclusion: “When she wrote the regulation, she was wearing the hat of a normal employee.” As such, she could be instructed to change gender.
The plaintiff is not forced, she can write her emails as she wants
Matthias Ginkel, lawyer for the BSH
According to the BSH lawyer, what is at stake is the employer’s right to design its documents as it sees fit. “Whoever changes here is the employer,” said Ginkel. “The plaintiff is not forced, she can write her emails however she wants.” Gendering with exceptions is not enough, said Ginkel. Anyone who wants to see their car painted red doesn’t want to live with a blue door.
Ginkel also did not accept the plaintiff’s argument that the gendering made the text incomprehensible. Stefanie Sch. had stated that gendering was not compatible with her Christian values because it made it difficult for some people, such as dyslexics, to read. “The plaintiff is putting herself in a position where she places herself above those who give her instructions,” criticized the lawyer. Furthermore, the employer does not have to justify what he is instructing. It just has to be legal.
The plaintiff’s lawyer, Wiltrud Fromm, tried to make the point that this was also the case Gendering It is about content and not just editorial work, so it has something to do with special expertise: “How do I influence the text so that the content is not distorted and remains understandable?” Whether you write “empowering doctor” or “specialist” makes a difference.
No decision about gender
The presiding judge Oliver Krieg offered the parties to seek an amicable solution to a judicial mediation procedure. Attorney Fromm rejected this: “The plaintiff is concerned with the core of her duties,” she said. “The verdict must be written for us.”
In the end, the court rejected the BSH’s appeal against the first instance judgment, which had already been in favor of Stefanie Sch. had failed, returned and did not allow for revision. A complaint against this is possible.
Stefanie Sch is really happy. not after the verdict. “I feared that the court would not decide on the general issue,” she told the taz. Why did she put herself at risk of losing a secure job? “Because I didn’t do anything wrong.”