Women and Justice: Jurisdiction

Domestic Case Law

1 BvR 300/02 Federal Constitutional Court (Bundesverfassungsgericht) (2002)

Domestic and intimate partner violence

Mr. Z appealed to the Court against an injunction issued against him by a lower court in expedited proceedings prohibiting him from approaching his partner and from re-entering the flat he shared with her on the grounds of protection from domestic violence. The Court did not allow the appeal on the grounds that the injunction did not breach a constitutional right of the claimant. The need for immediate short-term protection from further domestic violence justified the expedited nature of the proceedings.

BVerwG 6 C 25.12 Federal Administrative Court (Bundesverwaltungsgericht) (2013)

Harmful traditional practices

The Court rejected the appeal and upheld the decision of the lower court that a female Muslim high school student was not exempt from compulsory swimming lessons on the grounds of her religion. In the circumstances, there was not sufficient reason to undermine compulsory school attendance of children. The parents of the girl had applied to the school for an exemption from swimming lessons on the grounds that Islamic dress custom did not allow their daughter to participate in co-educational swimming lessons. The school had rejected the application but permitted the girl to wear swimwear which would be in accordance with Islamic custom (a burkini). The decision was generally welcomed as protecting the right of Muslim girls to education.

1 BvR 1409/10 Federal Constitutional Court (Bundesverfassungsgericht) (2011)

Gender discrimination

The Court held that it was in breach of the right to equal treatment enshrined in the German constitution that periods of maternity leave (which affects women only) were not counted towards certain pension benefits whereas periods of sick leave (which affects both men and women) were.

1 BvL 8/08 Federal Constitutional Court (Bundesverfassungsgericht) (2010)

Employment discrimination

Employees of state hospitals in Hamburg were granted the right in 1995 to continued employment in case of privatization of the hospitals. In 2000, the cleaning staff were spun out into a separate company which was a wholly-owned subsidiary of the state hospitals. Upon privatization in 2005, the right to continued employment was applied only to those employees employed by the state hospitals, not those employed by the wholly-owned subsidiary company. The Court held this to be in breach of the right to equal treatment enshrined in the German constitution as the cleaning staff denied the right to continued employment due to the spin-off were predominantly women and there was no evident justification for the unequal treatment of the two groups of employees.

15 Sa 517/08 Employment Court Berlin-Brandenburg (Landesarbeitsgericht Berlin-Brandenburg) (2008)

Employment discrimination

The claimant sued her employer on the grounds of discrimination after a male colleague received a promotion to a management role she had hoped for. The Court decided for the claimant, accepting statistical evidence showing that, while the majority of employees of the employer (69%) were women, no women were represented on the three most senior management levels. This was the first decision of a court accepting such statistical evidence of discrimination.

1 BvR 774/02 Federal Constitutional Court (Bundesverfassungsgericht) (2005)

Employment discrimination, Gender discrimination

The Court held that it was unconstitutional to require an attorney without earnings to continue to make compulsory pension contributions during time taken out to care for children (up to the age of three years). Requiring such compulsory pension contributions was viewed as in breach of the right to equal treatment enshrined in the German constitution because it disproportionately affects women who are in the vast majority of cases the ones taking time out to care for small children.

XII ZB 166/03 Federal Court of Justice (Bundesgerichtshof) (2004)

Female genital mutilation or female genital cutting

The Court affirmed the decision of the lower court which had prohibited the parents of a young daughter with Gambian nationality resident in Germany from determining her whereabouts and relocating her to Gambia due to a high risk of FGM/C being performed on the daughter in Gambia. This decision paved the way for several similar decisions by lower courts protecting girls from potential FGM/C during trips to their home countries in cases where a high risk of FGM/C was prevalent in the home country.