Was it discrimination for a woman to have to leave a Berlin water playground because of her bare breasts? Was the state of Berlin responsible and is a compensation claim of 10,000 euros appropriate? Complicated questions of legal determination for the appeal process at the capital’s chamber court, as judge Cornelia Holldorf also noted.

However, after three hours of negotiations on Friday, it was clear that a decision on the woman’s claim for compensation would not be made for some time. Consultations are still required.

The plaintiff Gabrielle Lebreton, who sunbathed topless in June 2021 and therefore had to leave the playground, refused a settlement discussion with representatives of the state of Berlin. The country, on the other hand, now wants to clarify, at the suggestion of the judge, whether it partially recognizes the woman’s claim. If the country refuses, the court will decide.

The case

Lebreton had visited the water playground (“Plansche”) in the Treptow-Köpenick district with her child and sat topless on a blanket. After a man complained, security guards working on behalf of the district because of the coronavirus pandemic asked him to cover his breasts or leave the area. When she refused, police officers were called to assist the security guards. Finally the woman left.

She then complained to the Berlin Anti-Discrimination Agency. The responsible ombudsman assumed discrimination. Based on their recommendation, the district changed its usage regulations for the playground. According to this, the swimwear must completely cover the primary sexual organs – not the breasts – for all genders.

The first instance

In the first instance, the regional court dismissed the woman’s claim for compensation under the Anti-Discrimination Act (LADG) in September 2022. The court argued at the time that she had not been unlawfully discriminated against because of her gender. The behavior of security guards and police was lawful.

The new negotiation

At the beginning of the new trial, the judge stated: “From a purely external perspective, she was treated differently as a woman than as a man. That was unequal treatment.” One could also speak of “poor treatment”. The legal question, however, is whether this treatment was justified or a restriction.

At the same time, she made it clear that the requested sum of 10,000 euros was far too high. That is far more than the law provides. A sum in the three-digit range, i.e. several hundred euros, would be more appropriate. There are significantly worse forms of discrimination. “We have to put it in perspective.”

The lawyers

The plaintiff’s lawyer, who only spoke briefly, emphasized that it was discrimination because it was based on gender. “It was about being a woman.” The complaining woman was supported by a “Society for Freedom Rights”; around 20 young women had gathered in the courtroom as spectators.

The lawyer for the state of Berlin argued: “We recognize that it was an unpleasant situation for the plaintiff, but that the state never wanted it.” The security service at the playground was only responsible for compliance with the Corona regulations and not for expelling the woman from the area. “The country is not liable for this.”

The judge had to interrupt the lawyers’ spontaneous discussions several times during the hearing and ask for restraint. When looking for a possible compromise, she pointed out to the woman that she had already achieved several successes. “You have already achieved a lot.” The rules of use for the playground have been changed. The whole issue was publicly discussed in detail.

The outlook

Judge Holldorf urgently emphasized that the dispute could also be resolved peacefully. “It’s a closed, isolated case from the past. The whole fundamental meaning of equality between men and women is completely gone.” But the woman concerned refused such discussions. “After these two years, I no longer have confidence in the country.”

Ultimately, the judge held the state of Berlin, in this case the Senate, district and police, responsible and asked for “partial recognition” of the woman’s lawsuit. The question arises as to how the country should deal with a citizen in this conflict. It also depends on the amount of possible monetary payment, she said. “Consider the wisdom of this proposal,” she repeatedly appealed to the lawyer and the country’s representatives. They in turn asked for time. At least six weeks are necessary – and that is still short considering the many authorities in Berlin.