Vom Verbot zur Gleichberechtigung - Hirschfeld-Eddy-Stiftung

01 | Sexual Identity, the Principle of Equality, and the Prohibition of Discrimination
increasing stringency. The court had already cast this differentiation in more relative
terms by introducing what was referred to as a new formula, according to which the
unequal treatment of groups of persons is more stringently reviewed than the differen-
ces in the treatment of circumstances. 12 On this level of abstraction, this differentiation is
still unproductive, since laws always regulate human behaviour. 13 In the Second Transsexual
Decision, the court takes an important step towards clarification: lawmakers are
bound “more closely, the closer the individual characteristics are to the personal characteristics
cited in Art. 3, paragraph 3 of the Basic Law (prohibition of discrimination), and,
hence, the greater the danger that unequal treatment based on them will lead to discrimination
against a minority.” 14
This is noteworthy and of considerable consequence.
The countries in which there is only one general principle of equality, as is the case, most
notably, in the United States, case groups have been developed in judicial practice that
require more or less stringent examination, the latter applies especially to cases of
so-called “suspect” differentiation. In most countries, however, a model similar to that
in Germany applies: also under the influence of prohibitions of discrimination under
international and European law, the constitution links a general principle of equality
to a more or less comprehensive catalogue of specifically forbidden forms of discrimination.
15
This might be a case of an argumentum e contrario: if the constitution itself determines
which differentiations are suspect, one might argue, then the differentiations that do
not fall into this category do not require any particular justification, but are rather only
subject to arbitrary control. That was, in fact, the prevailing doctrine in the first decades
of the Federal Republic and it still seems to influence today’s thinking. The Federal Constitutional
Court has, on the other hand, recognised that there are also “suspect” differentiations
in the areas in which Art. 3, paragraph 1 is applied.
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9 BVerfGE 49, 286. | 10 Ibid, 286, 300. | 11 BVerfGE 88, 87. | 12 BVerfGE 55, 72, 88. | 13 Bryde, Brun-Otto/Kleindiek,
Ralf: “Der allgemeine Gleichheitssatz”. In: JURA 1999. Pp. 36, 39f. | 14 BVerfGE 88, 87, 96. | 15 Comparative legal
survey of the guaranty of equality in fundamental rights: Bryde, Brun-Otto/Stein, Torsten: “General Provisions Dealing
with Equality”. In: Tushnet/Fleiner/ Saunders (eds.): Routledge Handbook of Constitutional Law. To be published
in 2012.
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