SEX DISCRIMINATION IN GERMANY (W)
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb00816.x |
| Date | 01 September 1978 |
| Published date | 01 September 1978 |
| Author | Dieter Giesen |
SEX
DISCRIMINATION
IN
GERMANY
(W)
I.
INTRODUCTION
t
IN
1974,
the German Federal Parliament
(Deutscher
Bundestug)
in
Bonn set up an Inquiry Commission
(Enqu&tekommission)
on the
Rights and Social Conditions of Women in Society-a commission
consisting of five Members of Parliament and five expert members
(including the present writertto inquire into the legal and social
conditions of women in today’s society, and with the task of elaborat-
ing and proposing measures which could be adopted by the Federal
Parliament and lead to an improvement in the legal and especially
the social situation of women in our society.’ In accordance with
the terms laid down by Parliament, the commission, as
a
result
of
its
work during the previous legislation period, drafted a first interim
report which, in December
1976,
after its presentation to the Presi-
dent
of
the German Bundestag, became an official parliamentary
paper
of
the Parliament of the Federal Republic
of
Germany.a
The report received wide-spread if not altogether positive
publicity in Germany, and has been reprinted several times since.3
It deals with the present day situation of women in Germany (W)
in the fields of education, employment, social security, and public
life, and the information it provides gives weight to the well-
established argument that, today, the problem of discrimination
against women in Germany exists not
so
much in the legal as in the
social ~phere.~
11.
LAW
RELATING
TO
SEX
DISCRIMINATION
IN
GERMANY (W)
In the legal field almost all discriminatory laws have been gradually
removed since
1949,
and some
of
the few relatively unimportant
ones which remained until recently were done away with by
the
t
The following abbreviations
are
used: B.G.D.
=
Eurgerliches Gesetzbuch
(German Civil Code,
1896);
B.G.BI.
=
Eundesgesetzblatt
(German Federal Statute
Book);
BVerfGE
=
Entscheidungen des
Bundesverfassungsgerichts
(Official Collection
of Judgments of the Federal Constitutional Court); BVerwGE
=
Entscheidungen des
Bundesverwaltungsgerichts
(Official Collection
of
Judgments of the FederaI
Administrative Court).
1
Deutscher Bundestag, Drucksachen
71367
(March
7, 1973)
and
71 1148
(October
23,
1973).
2
Zwischenbericht der Enqustekommission Frau und Gesellschaft des Deutschen
Bundestages
(November
11,
1976),
Bundestags-Drucksache
7/5866
(hereafter quoted
as
Zwischenbericht).
The commission terminated with the end of the legislation period
of
Parliament in December
1976;
after the
1976
federal elections the Inquiry Com-
mission was renewed by Parliament in September
1977,
and has resumed its
work
again. The relevant parliamentary sources now are:
Bundestags-Drucksache
8/305
(April 20,
1977)
and
Deutscher Bundestag, Plenarprotokoll
8/25
(25th session of
May
5,
1977),
pp.
1737
et seq.
8
The interim report was reprinted in
27
Das
Parlament
No.
18
(May
7, 1977)
and in
Zur Sache. Themen Parlamentarischer Beratung
1/77
(the latter edition can
be
obtained from the
Presse- und Informationszentrum des Deutschen Bundestages,
D
-
5300
Bonn [no charge]). For a legal review
of
the interim report
cf.
B.
Schulz,
Chancengleichheit fur die Frauen,
in:
Zeitschrift fur Rechtspolitik
(1977),
pp.
18-19.
-
4
Zwischenbericht,
pp.
5
et seq.
and this article,
infra,
Part
111.
526
Sept.
19781
SEX
DISCRIMINATION
IN
GERMANY
(W)
527
German Marriage Law of June
14, 1976,
which came into force on
July
1, 1977.5
From the beginning of these reform measures in
1949
down to the present day, the philosophy behind them has always
centred around the constitutional rule of legal equality of sexes
as
embodied in Article
3
of the German Basic Law
(Grundgesefz)
of
1949.
1.
This Article, which constitutes
a
binding rule of constitutional
law for all fields of public and private law
‘
reads as follows:
“
(1)
All human beings are equal before the law.
(2)
Men and women have equal legal rights.
(3)
No
person shall suffer prejudice or gain preferment by
reason
of
sex, descent, race, language, home and social
origins, beliefs or religious or political convictions.”
When this basic Article of the German constitution was passed in
1949,
many legal writers experted great difficulties and problems to
arise if the rule of equality of sexes came into full force immediately.
This was especially
so
in the case of family law because large parts
of the law of husband and wife, of matrimonial property and of the’
law of parent and child, particularly with regard to legitimate and
illegitimate children, were not at that time in accordance with the
equality rule. Therefore, when passing the German constitution in
1949,
the legislature provided in Article
117 (1)
of
the Basic Law
that all law not in accordance with the equality rule should remain
valid until its reform by the legislation, which reform was to be
carried out by March
31,1953,
at the latest.
2.
However, the legislature was unable to adapt the old law to the
modern constitutional rule of equality within this relatively short
period. This led to
a
situation in which, from April
1,
1953,
onwards,
the courts were called upon to adapt the old family law to the new
rules of equality. The highest court in Germany, the Federal Con-
stitutional Court
(Bundesverfassungsger~c~f)
held that the principle
of equal rights had, since April
1,
1953,
become a rule
of
positive
law and that, from that day on, all legal provisions conflicting with
that principle had ceased to be operative.‘
Although German judges were not particularly well trained in,
nor accustomed to,
a
case-law technique and doctrine of precedent
in the common law sense, the courts, in retrospect, did face up to
this immense task extremely well: the anticipated legal uncertainty
-the courts being without firm legislative rules-did not occur.8
3.
Meanwhile, Government and Parliament worked out a family
law bill, and this bill, now known as the Equality Act
(Gleich-
berechtigungsgesetz),
became law on July
1,
1957.9
5
Erstes Gesetz zur Reform des Ehe- und Familienrechts
(1. EheRG),’June 14, 1976,
6
2
BVerfGE 424.
7
3
BVerfGE
225.
6
Cf.
J.
Leyser, “Equality of Spouses under the new German Law” (1958) 7
9
Gesetz iiber die Gleichberechtinung von Mann und Frau auf dem Gebiete
des
B.G.BI.
I.
1421
et seq.
The American Journal
of
Comparative
Law
276-287, 278.
Biirgerlichen Rechts,
June 18, 1957, B.G.BI.
I.
609
et seq.
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