Legal opinion assesses the requirement to use gender-neutral language in examinations as permissible in certain cases

Specifications for the use of gender-equitable language in examinations are permissible under certain conditions. This is the result of an expert opinion commissioned by the University of Kassel in summer 2021 on the occasion of a publicly discussed individual case on the question of whether the use of gender-equitable language may be specified by lecturers as a partial criterion in examinations. The expert opinion was prepared by the renowned legal scholar Prof. Dr. Michael Sachs. Sachs is a constitutional and administrative law expert and former co-director of the Institute for German and European Science Law at the University of Cologne.

The expert opinion rejects the consideration of gender-equitable language as a further general formal criterion for an examination performance, as gender-equitable language is not generally recognized in the same way as, for example, grammar and spelling. However, after a detailed analysis of the legal situation, the report comes to the conclusion that lecturers are allowed to consider the use of gender-equitable language to a certain extent as a criterion in an examination, regardless of formal regulations such as examination regulations. However, the prerequisite is always that there is a sufficient subject-specific or professionally qualifying reference in the specific examination.

The expert opinion emphasizes that the consideration of gender-equitable language as a so-called "element of examination-specific assessment" must not be arbitrary. Insofar as there is no final clarity on this, the examinee's "scope for answering" must be respected, and any deviating use of language must not be detrimental to the examinee. The principle of proportionality must also generally be observed.

The University of Kassel believes that this confirms previous assessments to the extent that, according to the current legal situation, consideration of the criterion of "gender-appropriate language" can be justified in individual cases on the basis of the lecturer's professional assessment, which must be respected. At the same time, however, the differentiated and balanced findings of the report show that generalizing statements are difficult to make.

To date, there are no legal regulations on the use of gender-equitable language in examinations at federal, state or university level, nor does case law provide any guidance. The University of Kassel had previously given a general indication that the use of gender-equitable language as an assessment criterion in examinations was permissible within the framework of the freedom to teach, provided that the principles of proportionality were observed. After the legal uncertainties became apparent, the notice was suspended and the expert opinion was commissioned.

Status: 07.12.2021

Striving for gender equality and gender-sensitive language is a constitutional mandate for the University of Kassel. In doing so, we are committed to an academic culture of debate about the better argument. To date, the university has received neither a complaint nor an objection to a supposedly lower grade due to the use of the generic masculine. The student launched the issue exclusively via the media.

The legal opinion drawn up by the renowned expert in academic law, Prof. Dr. Michael Sachs, was commissioned in order to legally classify the use of gender-neutral language as a sub-criterion in university examinations, as there is no case law on the subject as yet. It was not intended to review a specific case. In cooperation with and with the authorization of the reviewer, the result of this report was summarized in the above statement. The copyright to the expert opinion lies with the expert.

We are aware of the great public interest in the expert opinion on the use of gender-equitable language in university examinations. Following consultation with the expert, Cologne examination law expert Prof. Dr. Michael Sachs, we are publishing it on our homepage today (20.12.) with his express consent. After receiving the report, the university's committees dealt with it first. A summary authorized by the expert was then published.

The aim of his report is to classify the use of gender-equitable language as a sub-criterion in examinations at the University of Kassel in an abstract, legally independent, comprehensive, factual and differentiated manner.