Self-Determination Act: Implications for employers?

 What what does the Self-Determination Act (SBGG) mean for employers as of November 1, 2024?

Self-Determination Act: Implications for employers?

Employment contract, gender quota, and documents: The name and gender of employees affect the employment relationship in numerous ways. But what does the entry into force of the Self-Determination Act (SGBB) actually mean in the context of employment law?

What does the Self-Determination Act regulate?

The “Act on Self-Determination with regard to Gender Registration”, also known as the Self-Determination Act (SGBB), enters into force on November 1, 2024. While the act does not directly impose obligations on employers, it does have consequences for HR. From the beginning of November, transgender, intersex and non-binary people will be able to change their gender registration and first name in the civil status register more easily.

A declaration at the registry office is sufficient. The declaration must state whether the person wants to be registered as a female, male or diverse person and the names they wish to use. The change takes effect when the declaration is made, even if the legal status of the person remains unclear in the time between the declaration and entry in the civil status register.

In view of this, employers are advised not to notify social insurance institutions, etc. until after the change has been entered in the civil status register.

SGBB: Consequences of the Self-Determination Act for employers?

When a person changes their gender registration, this can have labor law consequences in areas such as the following:

Changes to documents

After changing their gender entry, employees can request that their references, training and employment contracts be amended, for example. This can be a complicated process when it involves documents from the past if the issuing body no longer exists.

Gender deception?

In future, an employment contract will not become contestable on the grounds of “fraudulent misrepresentation” because a person with the physiognomy of a man is entered in the civil status register as a woman but did not actively disclose this during the application process. This is conceivable if gender represents an essential characteristic of the employment relationship. At the same time, the AGG must provide a justification for offering a position only to a specific gender. This is because the applicant is not required to provide information about their gender without being asked.

Gender quota

The (amended) entry in the civil status registration at the time of employment or appointment to an office is relevant with regard to gender quotas. For example, this becomes important when

  • a company strives to achieve a balanced gender ratio,
  • management positions must be assigned in line with the Management Positions Act (FüPoG) or
  • the proportion of men and women at the company also has to be represented on the works council (Section 15 (2) Works Constitution Act (BetrVG)).

Prohibition of disclosure Section 14 SBGG

Alongside all this, HR departments also need to be aware of the prohibition of disclosure stipulated in the SGBB (Section 14 SBGG): Anyone at the company who is aware of a change to gender registration needs to keep this information confidential unless it is already generally known. Employers need to make their employees explicitly aware of this, especially in HR, in order to avoid facing fines as a consequence of deliberate violations.

No change to the personnel file

However, a personnel file does not have to be changed retroactively with regard to gender and name. Nevertheless and in their own interest, employers are advised to minimize the number of people who have access to such sensitive files and even document access, if necessary.

Bullying among the workforce

Last but not least, employers have a duty to prevent bullying in this context: Employees who consistently and deliberately address a person by their old name despite a change of name and gender may receive a warning for bullying.

What can we do for you?

Do you have any questions regarding the effects of the SBGG on employment relationships? Do not hesitate to contact us!

Summary of the key facts:

  • The Self-Determination Act will simplify changing the gender entry in the civil status register as of November 1, 2024.
  • The law does not impose any direct obligations on employers.
  • The simplified procedure for changing the civil status register can have an indirect impact, in particular regarding gender quotas, modifying documents and preventing bullying.