The state must not generally oblige citizens to gender

The debate about the use of gender-sensitive language is being conducted as passionately as it is heated by linguists and gender researchers.

The state must not generally oblige citizens to gender

The debate about the use of gender-sensitive language is being conducted as passionately as it is heated by linguists and gender researchers. With Hans-Jürgen Papier, the former President of the Federal Constitutional Court, a prominent legal scholar has now joined the discussion. In a report available to WELT AM SONNTAG on behalf of the Theo Münch Foundation for the German Language, the emeritus university professor examines the question of which constitutional obligations arise from the Basic Law for gendering.

The central finding of the 20-page elaboration is that a state standardization of the language for mandatory use by all citizens in the private and social sphere is a disproportionate encroachment on the general right of personality and "therefore constitutionally inadmissible". The same applies to the schools. "An obligation to use gender-sensitive language in schools is ... also not to be considered appropriate with regard to the goals pursued and is therefore ... to be considered constitutionally inadmissible," says the report. This applies “at least as long as the use of gender-neutral language is not reflected in general language use”. Despite gendering in public service broadcasting and at universities, this "cannot be accepted at this point in time".

The situation is different in legal and official language. It is true that constitutional law does not result in a general obligation for the state to use gender language. Also, "a non-use of gender-appropriate language leaves the constitutional conformity of state action unaffected". For example, the use of the generic masculine in the Basic Law “does not express contempt for persons whose natural sex is not male”. The "Chancellor" of the constitution is not necessarily a man, but "a fictitious, legally abstract subject" in order to simplify the application of the law.

"However, the use of the grammatical masculine form as a generic masculine as a collective form has neither the aim nor the effect of maintaining a privileged position of male persons or of negating the personal claim of respect of women, trans, inter and non-binary persons, but simplifies as before, the general language, which serves the constitutionally anchored as part of the rule of law requirement of comprehensibility, especially in legal jargon," writes Papier.

Gender-equitable language could even lose the primary function of language, i.e. make communication more difficult, due to "overly differentiating in every conceivable case and insider language with long word combinations and expressions that are often only understandable to certain circles, such as LGBTQIA*". In any case, the generic masculine noun is not a violation of the principle of equal rights and the general right of personality of the Basic Law.

On the other hand, the report states "that the use of gender-neutral official and legal language within the limits shown does not constitute a violation of the Basic Law". The essential limit is therefore the legibility and comprehensibility of the legal language: "Especially in the legal and especially in the legal language terms have an ordering function, which are able to address the affected individual cases in the best possible way through the most concise and yet precise formulations possible." Comprehensibility is maintained , it is “up to the legislative bodies … whether and how they want to use gender-equitable language”. This applies to the federal legislature, the federal states, legal ordinances and administrative regulations, or the universities.

In the official language of state institutions, which, for example, are "explicitly addressed to individual citizens" in administrative acts, "the correct gender-specific form of address should always be used". This results “from the personal claim to respect and the self-image of these people with regard to their self-perceived gender affiliation”, which are protected by general personality rights. This could also mean that forms should be addressed in a gender-fair manner.

Hans-Jürgen Papier, Germany's supreme judge from 2002 to 2010, and his colleague Matthias Schanzenbächer have carried out a comprehensive evaluation of the relevant case law of the Federal Constitutional Court, the Federal Court of Justice and the Higher Administrative Courts as well as the scientific literature for the report on the question "Gender as a constitutional obligation?".

Because the Basic Law itself does not contain any direct regulations on the linguistically correct spelling of the German language. However, the constitution also contains "no fundamental ban on making spelling the subject of state regulation," according to the expert opinion. The Federal Constitutional Court stated in its decision on the spelling reform: "The assumption that the language 'belongs' to the people cannot justify such a ban; because neither does the 'belonging' express an assignment in the legal sense, nor could the thesis on which the assumption is based, if its legal content were appropriate, to prevent the state from dealing with it."

An employee complained about the guidelines for using gender-sensitive language at Audi. Now his lawsuit has been dismissed. According to the district court of Ingolstadt, the employee is not obliged to use it because he works at VW.

Source: WORLD

The fact that an object does not belong to the state does not prevent it from subjecting its use to certain rules. This has also happened with regard to gender-equitable language, for example in the Federal Equal Opportunities Act. There it is standardized that equality in legal and administrative regulations should also be expressed linguistically.

The constitutional basis for gender-appropriate language is found in Article 3 of the Basic Law, which states, among other things: “Men and women have equal rights. The state promotes the actual enforcement of equal rights for women and men and works towards eliminating existing disadvantages.” And further: “No one may be disadvantaged or preferred because of their gender.” According to the Constitutional Court, this fundamental right also includes people who are neither female nor male. In addition, there is the right to the free development of personality from Article 2 in connection with the guarantee of human dignity from Article 1, which according to Karlsruhe also protects gender identity.

However, these fundamental rights do not result in “an absolute constitutional obligation to use gender-equitable official and legal language”, the experts state – and certainly no such obligation in private use of language. Because that too is protected by general personality rights. Citizens are "basically free to choose their language in private and public use as they wish," according to Papier.

A state intervention in this freedom is not proportionate, because it applies: "The actual purpose of such binding regulations would not be the objective reason to maintain and promote equality and the enforcement of the gender-specific differentiation ban, but rather an educational concern of the state."

However, the free constitutional state should not enforce such concerns "by means of orders and coercion towards its free citizens, because these are not subjects to be patronized by the state and to be cared for all round". In short: A state regulation that mandates gender-neutral language for the individual use of citizens is disproportionate to the purpose of increasing gender awareness - and is therefore constitutionally inadmissible.

While the reviewers extend this conclusion to the schools, the universities remain unmentioned. As self-governing bodies, they are free to use their official language. However, if students are required to do this in their scientific work, which is what happens at some universities, the logic of the report should apply to them no different than to pupils.

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