Hans-Jürgen Papier, the former president of the Federal Constitutional Court, says that state-imposed gendering is inadmissible. No regulations would result from the Basic Law. In the official language of state institutions, however, gender-equitable language should be used, he says.
In an expert opinion, Hans-Jürgen Papier, the former President of the Federal Constitutional Court, stated that state-imposed gendering would be “constitutionally inadmissible” because it would represent a disproportionate encroachment on general personality rights. This also applies to schools, “at least as long as the use of gender-appropriate language is not reflected in general language use”. According to the paper, this is not the case – even if there is increasing gender equality in public broadcasting and at universities. Paper was from 2002 to 2010 chief judge at the Federal Constitutional Court.
In the official language of state institutions, which is aimed at “individual citizens”, the gender-specific form of address should be used, says Papier. This is also stipulated in the Federal Equal Opportunities Act. The background is the right to respect perceived gender affiliation. This could also mean that forms must contain a gender-sensitive approach.
However, no direct regulations can be read from the Basic Law and in particular no gender obligation in private language use, which is protected by personal rights. Citizens are “basically free to choose their language in private and public use as they wish,” according to Papier.
According to the paper, the use of gender-neutral official and legal language is not a violation of the Basic Law as long as it remains legible and understandable. While comprehensibility is maintained, it is “up to the legislative bodies themselves 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 universities.
Paper also emphasizes that the generic masculine is neither a violation of the principle of equal rights nor of the general personality rights of the Basic Law. Instead of expressing a privileged position of male persons, terms such as “Bundeskanzler” are fictitious, legally abstract subjects that simplify the application of the law. This serves the “principle of comprehensibility anchored as part of the rule of law,” explains Paper.
According to Papier, long word combinations such as LGBTQIA* represent “insider language” and are often only understandable to certain circles. That would make communication more difficult – and thus counteract the primary function of language, comprehensibility.
