When René_ Rain Hornstein buys a ticket from Deutsche Bahn, Hornstein feels discriminated against. The reason: Hornstein sees himself as a non-binary person and does not want to be addressed as either a male or female person. And yet René_ Rain Hornstein, the underscore stands for diversity, must choose a salutation as Mrs. or Mr. when booking. Worse still: Deutsche Bahn also calls Hornstein a gentleman in personal letters.

This behavior is discriminatory, says Hornstein, and has therefore sued Deutsche Bahn, more precisely the sales subsidiary. The Higher Regional Court (OLG) in Frankfurt/Main ruled on Tuesday – and agreed with Hornstein. From 2023, the judges ruled that the railways may no longer require a salutation as “Mr.” or “Ms.” when using the company’s offers.

In practice, this means that the railways must either dispense with the salutation entirely or offer other forms. The company now has almost six months to convert the booking system.

When issuing tickets, letters from customer service or advertising and stored data, the railways even have to act immediately – the court did not grant a transitional period. In individual communication, it was “technically feasible and financially and personally reasonable for Deutsche Bahn to comply with the injunctive relief without a transitional period,” the judges ruled.

This is an appeal procedure for a judgment from December 2020, in which the Frankfurt/Main district court had already requested that the gender information be supplemented. The judgment is no longer contestable. “Politicians have introduced the possibility of having diverse entries as a gender or deleting the gender entry,” said Hornstein during the process.

This possibility has existed since 2013. “However, it left us alone with all the subsequent problems.” It is an enormous hurdle for an affected individual to go to court to argue with large corporations that would refuse to eliminate discrimination .

And so the railway sales subsidiary also has to pay compensation of 1000 euros. According to the Higher Regional Court, the plaintiff suffered non-material damage as a result of violating the prohibition on discrimination. She experiences “the attribution of masculinity” as an attack on her own person. And that leads to significant mental stress.

However, the plaintiffs were never concerned with their own advantage, as Hornstein emphasized in the course of the process, but with the principle. Hornstein had rejected a comparison. Accordingly, the railway is said to have also offered to change its IT systems by 2023. By then, Hornstein would have received a BahnCard 100.

The prospects for Deutsche Bahn in the discrimination dispute were poor anyway: Robin Nobicht, who also sees himself as a non-binary person, had also filed a lawsuit against Deutsche Bahn before the Frankfurt/Main district court. The company was instructed to change their IT platform so that they no longer incorrectly address Nobicht.

Penalties of up to 250,000 euros are now threatened – for each individual violation. An appeal by the railways came too late at the time and was therefore rejected by the Higher Regional Court.

“As a group, DB stands for a culture of equal opportunities and appreciation,” the group clarified when asked. Diversity is a top priority at DB and has raised awareness of gender-appropriate language in all areas of the company.

And yet the company cites a challenge: “There are still no universally recognized standards for addressing non-binary gender people in German-speaking countries,” explains a spokeswoman when asked. The ideas even within the group of people affected are currently still very different.

The group is working intensively on a gender-fair addressing option in the communication channels. “This is technically easier in some cases than in others,” explains the spokeswoman. The verdict will be reviewed and then a decision made on how to proceed. But the railways are already planning major changes to the sales platforms.

The decision should now have a signal effect for numerous other companies. If they do not create any further options, they too face discrimination allegations – and a defeat in court. “I hope that other companies will also be inspired by this ruling to properly target their non-binary customers,” said plaintiff Nobicht.

There have been similar lawsuits in the past. They were primarily aimed at online retailers, who also only allowed their customers to choose between male and female. Last year, the Karlsruhe Higher Regional Court ruled against a clothing company that did not offer a third category at the time. The procedure violated the general Equal Treatment Act, those affected were violated in their personal rights, judged the judges.

The case of Marlies Krämer also attracted a lot of attention. The senior had sued the savings bank a few years ago. In most cases, the latter had refrained from addressing women with female personal designations such as “customer” or “account holder” in forms and forms. For her principles, Krämer even went as far as the Federal Constitutional Court and filed a constitutional complaint. But the top judges dismissed the complaint of the woman from Saarland, albeit due to deficiencies in the reasoning.

However, the lawsuit had previously failed in all instances. The BGH, for example, ruled that the so-called generic masculine was common in language use and did not express disdain for people of the opposite sex. The form is also used in many laws and even in the Basic Law.

Unlike in the USA, for example, those affected are rarely entitled to high compensation payments. “Not every touch on the general right of personality triggers a claim for monetary compensation,” the Karlsruhe Higher Regional Court clarified in the case of the online retailer.

For a payment “a serious violation of the ban on discrimination” is required, which reaches a “certain intensity of reduction and setback”. One argument was decisive for the judges: the discrimination only took place in the private sphere, namely in personal online purchases. And not in public.

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