Topless at the Berlin "Plansche": GFF achieves victory against gender discrimination

Are women allowed to expose their chest in public? This question is at the centre of a legal dispute that has its origins in an incident at the Plansche water playground in Berlin's Plänterwald. In the summer of 2021, the plaintiff Gabrielle Lebreton met up with her child and a friend and his child at the water playground.

As Lebreton was sunbathing toplessly, she was first asked to cover up by the park's private security service and later by the police who had been called in. Lebreton felt that this demand was discriminatory in view of the many men who were sunbathing in the playground without covering their bodies. When Lebreton refused to follow the instructions, she and her child had to leave the Plansche.

BERLIN REGIONAL COURT FAILS TO RECOGNISE CONSTITUTIONAL STANDARDS

After the incident, Lebreton and Neukölln lawyer Leonie Thum filed a lawsuit with the Berlin Regional Court. The claim: compensation under the Berlin State Anti-Discrimination Act (LADG) for gender discrimination. This law has only been in force since 2020 and is unique in Germany. However, the court rejected the claim, arguing that the plaintiff had violated a "sense of modesty" which needed to be protected. This judgement shows that the court grossly misjudged the constitutional standards for gender discrimination, which must be taken into account as part of the prohibition of discrimination under the LADG.

Unequal treatment on the basis of gender is only justified under strict requirements: it must either be absolutely necessary due to biological differences or be justified by conflicting constitutional law such as the fundamental rights of third parties. The vaguely described "sense of modesty" does not fall into this category. The actions of the security forces were disproportionate and - like the decision of the regional court - violated the ban on discrimination. The decision was the first judgement on the LADG. In the appeal proceedings, it had to be clarified that the high constitutional requirements for the justification of unequal treatment on the basis of gender must be observed. The regional court had misjudged the constitutional standard to such an extent that the new Berlin anti-discrimination law was in danger of being undermined before it could take effect.

BERLIN HIGH COURT RECOGNISES UNEQUAL TREATMENT: STATE OF BERLIN GIVES IN

At the appeal hearing on 29 September 2023, the Berlin Court of Appeal ordered the state of Berlin to consider recognising the claim for compensation due to discrimination. The state of Berlin complied and partially recognized the claim of the plaintiff Gabrielle Lebreton in December 2023.

Within the first few minutes of the appeal hearing, which lasted several hours, the court declared that Lebreton had been treated unequally. As a woman, she had been treated differently to the male "Plansche" visitors. The Berlin Regional Court had previously recognised "gender differences" between the male and female breasts without further explanation and had assumed "unequal treatment of the unequal". The Court of Appeal left open whether the unequal treatment was justified.

During the hearing, however, no viable justification for the unequal treatment became apparent. By admitting that there was discrimination on the basis of gender at the water playground, the state of Berlin ultimately followed the legal judgement of the GFF.

The amount of the claim asserted was only partially recognised by the state of Berlin and has been established by the final judgement of the Berlin Court of Appeal.

Lebreton receives a three-figure sum and bears the entire legal costs. The court took her socio-political commitment into account to reduce the damages awarded. According to the court, our plaintiff had "consciously and intentionally entered into a confrontation" from the outset. The court thus fails to recognise cause and effect. Those affected are often motivated by what they have experienced to show solidarity. The judgment thus illustrates how difficult it is to provide effective and judicially enforceable protection against discrimination.

Instead, sanctions must be effective, proportionate and dissuasive in accordance with European law. The General Equal Treatment Act (AGG) already criticises the fact that the low compensation payments do not comply with European requirements and urgently need to be adjusted (more on this in the statement in the "AGG reform now!" alliance). In order to effectively prevent discrimination, the practice from the AGG must not become a benchmark for the LADG. Especially because the LADG is about discrimination by the state, which is directly bound by the Basic Law.

INCIDENT IN LINE WITH #FREETHENIPPLE MOVEMENT

The incident attracted a lot of attention on social media, where the feminist demand to lift the so-called "nipple ban" is being made under the hashtag #FreeTheNipple. The aim of this movement is to counter the oversexualisation of the female breast in advertising and film and to give women as well as trans, non-binary, inter and agender people more self-determination over how they treat and show their bodies.

Despite the final judgement, the plaintiff Lebreton also feels committed to this demand and is pleased about the concession by the state of Berlin: "The recognition shows that the fight was worth it. It has been a long road and I hope that I have encouraged other victims. Women have the right to physical self-determination just like men. The female body must not continue to be sexualised without our consent!"

TOPLESS NOW PERMITTED FOR WOMEN IN THE "PLANSCHE"

Another point of contention was whether the water playground had a usage policy at the time of the incident. As it turned out, there was no dress code at all that Lebreton could have violated.

In the aftermath of the incident, the "Plansche" initially established a regulation that required "standard swimwear" to be worn. The LADG ombudsman's office then intervened and pushed for a gender-equitable regulation. In the meantime, the "Plansche" has made its regulations non-discriminatory and allows everyone to sunbathe shirtless, regardless of their gender.