Legal opinion evaluates the requirement to use gendered language in exams as permissible in certain cases

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Requirements for the use of gender-appropriate language in examinations are permissible under certain conditions. This is the result of an expert opinion commissioned by the University of Kassel in the summer of 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 teachers 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 Academic Law at the University of Cologne.

The expert opinion rejects the consideration of gender-equitable language as another general formal criterion for an examination performance, since gender-equitable language is not generally accepted in the same way as, for example, grammar and spelling. After a detailed analysis of the legal situation, however, the expert opinion comes to the conclusion that teachers are allowed to consider the use of gender-equitable language to a certain extent as a criterion in an examination, irrespective of formal regulations, such as those of examination regulations. The prerequisite, however, is always that there is a sufficient subject-related or professional reference in the specific examination.

The expert opinion emphasizes that the consideration of gender-appropriate language as a so-called "element of examination-specific evaluation" must not be arbitrary. Insofar as there is no final clarity on this, the "answer latitude of the examinee" must be respected, for whom a deviating use of language may then not be to his or her disadvantage. In general, the principle of proportionality must also be observed.

The University of Kassel sees this as confirmation of earlier assessments that consideration of the criterion of "gender-appropriate language" can be justified according to the currently valid legal situation in individual cases with the professional assessment of the lecturer, which is to be respected. At the same time, however, the differentiated and deliberative findings of the expert report prove that generalizing statements are difficult to make.

To date, there are no legal regulations at the federal, state, or university level regarding the use of gender-equitable language in examinations, and case law has not provided any guidance either. 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 freedom of teaching, 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

Supplement from 13.12.2021

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

The legal opinion prepared by the renowned expert on academic law, Prof. Dr. Michael Sachs, was commissioned in order to have the use of gender-equal language as a partial criterion in university examinations legally classified, because there is as yet no case law on the subject. It was not intended to review a specific case. In cooperation with and with the authorization of the expert, the result of this expert opinion was summarized in the statement listed above. The copyright to the expert opinion lies with the expert.

Supplement from 20.12.2021

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

In its expert opinion it concerns to classify the use of gender-fair language as partial criterion in examinations at the University of Kassel abstractly in legal regard independently, comprehensively, factually and differentiated.