Unlike the trial three weeks ago, Marlies Krämer did not come to the verdict. Perhaps she had guessed that things would not go well for her cause: Tuesday the 6th Civil Senate of the Federal Court of Justice (BGH) dismissed its claim ,
As before, the District Court and the Saarbrücken district court now also decided the BGH against the plaintiff, the of their Bank also in standardized letters and forms only as a “customer”, but not as a “customer” would like to be addressed.
However, according to the court, women do not have a “general entitlement” to be entered in bank forms “not among the grammatical male, but exclusively or additionally with grammatically feminine person names”. Translated into generally understandable German, this means: The customer, the depositor, the account holder Krämer, she may continue to be addressed by the banks as a customer, depositor and account holder.
What the judge has embezzled
At least two women like this judgment. But it must be left open whether they, or perhaps even one or the other male colleague, have been overruled by the other judges.
Karlsruhe insiders were able to recognize that the verdict was not unanimous or at least not quite unanimous. One hint was the way Senate Chairman Gregor Galke dealt with a thought that was apparently intended as a concession to critical voices in the Senate, and which is also found in a press release from the court.
The Senate expressly acknowledges that such purely male forms of address “are criticized as discriminating against the background of the question of the discrimination of women through the language system and linguistic usage, which has been under discussion since the seventies, and sometimes no longer as self-evident as generalizing, as was the case in the past that may have been the case “.
Born in 1953, also in the 1970s socialized Chairman Galke, this thought was probably too feminist – he simply suppressed him in his oral testimony. Instead, he referred straight to the “linguistic usage of the legislature,” for which – as in the Criminal Code – also “the relative”, “spouse” or “life partner” also stands for persons of both sexes. What the legislature is right, so the conclusion of the majority of the Senate, the banks should be cheap.
Doubtful circular conclusion
However, this may be a bit too brief in so far as the General Equal Treatment Act (AGG) binds those involved in economic life but not the legislator. In other words, can a lax language approach by the legislator justify a just approach to business life? The BGH apparently means yes.
But the argument that the use of language by the legislature is “both formative and characteristic” for the general usage of language and the resulting understanding of language does not really contribute here. On the contrary, according to the AGG, it must be asked whether the plaintiff Krämer experiences a “disadvantage” because of sex within the meaning of clause 3 of the General Equal Treatment Act.
The BGH denies this. A “less favorable treatment” of women is not present here, because such a language use “expresses no disrespect towards persons whose natural gender is not male”. The male name should therefore not be a disadvantage, because it is not disadvantageous.
This is a classic circular statement. But is the disadvantage (and thus the contempt) not rather that for women just not a female counterpart is used? After all, men are addressed correctly grammatically, women are not. Should not that be a disadvantage?
How about if the banks address all male and female customers only as “customers”? Then women would no longer be disadvantaged, but men would be disadvantaged. Of course, it can be considered insignificant – the fact that women are treated less favorably here than men does not change anything. This is ultimately exactly the idea that the BGH wants to have recognized, according to the press release, and the Judge Galke at the announcement studiously ignored.
In order to get over the legal provision of the AGG, the BGH has simply set a rating here: women do not have to be insulted if they are addressed as a man. Point. He may do that as a court of appeal. You do not have to convince yourself of it.
Marlies Krämer now wants that Federal Constitutional Court call. Responsible for this is likely to be the First Senate. Its five judges and three women judges have recently decided that legislators must provide for a third, neutral gender in passports and birth certificates in addition to male and female. It will be interesting to see how the constitutional judges decide. It is quite possible that in the end they will follow Marlies Kramer’s view.
File number: VI ZR 143/17