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Plaintiff Lebreton (left) with lawyer Thum: 10,000 euros in compensation demanded
Photo: Jörg Carstensen / dpa
A hot day in June 2021. A woman and her child visit the »Plansche« water playground in Berlin-Treptow.
The son puts on his swimming trunks, the woman takes off her T-shirt.
She does the same as the men who sunbathe shirtless.
The fact that the 26th civil chamber of the Berlin district court dealt with that summery scene almost a year and a half later is because of how the story went on at the time.
Two men from a county security agency asked Gabrielle Lebreton to cover her breasts.
For the woman a clear case of discrimination.
She refused.
Words went back and forth.
Eventually, two policemen came who didn't want to argue: get dressed or go!
Gabrielle Lebreton left the water playground with her child.
She felt ashamed, humiliated and treated unfairly.
And that's why she sued the state of Berlin for compensation - and has now failed in the first instance.
The chamber dismissed her complaint in the afternoon.
Gabrielle Lebreton, 38, is a French architect and has been living in Berlin for ten years.
Her lawsuit relates to the Berlin State Anti-Discrimination Act, which is unique in Germany and came into force in June 2020.
It is intended to protect people from any form of discrimination by public bodies, authorities and institutions.
Since then, there has been an ombudsman for the state of Berlin that those affected can turn to.
For the ombudsman, dealing with Gabrielle Lebreton at the »Plansche« constituted discrimination. Half-naked men were allowed to stay, Gabrielle Lebreton had to go – unequal treatment because of her gender.
A procedure that could only be justified if there is a sufficiently objective reason for it.
She demands at least 10,000 euros
The ombudsman found none.
The fact that others are bothered by the sight of naked women's breasts on a lawn is not enough to justify gender inequality.
Looking away would have helped.
The ombudsman of the state of Berlin recommended that the responsible district office change the usage regulations for the »Plansche«.
That's what happened now.
Now it says: »Swimwear must completely cover the primary sexual organs.
This applies to all genders.” Female breasts are secondary sexual characteristics.
Henceforth they may remain uncovered.
Nevertheless, Gabrielle Lebreton sued the state of Berlin.
She is demanding compensation of at least 10,000 euros.
On the one hand, the money should compensate for the immaterial damage caused, says her lawyer Leonie Thum.
On the other hand, the height should also have a preventive effect, so that this does not happen to others in the future.
A relief depicting Adam and Eve hangs above the door
On this Wednesday morning, all parties meet in front of the district court in Berlin.
A relief hangs outside above the entrance door of Room 100.
It shows Adam and Eve with apple and snake.
"Then the eyes of both of them were opened and they realized that they were naked," says the Bible.
It is a coincidence that this room is about bare breasts.
Lawyer Eike-Heinrich Duhme represents the state of Berlin, employees of the Treptow-Köpenick district office concerned and the police accompany him.
Duhme hopes that the lawsuit will be dismissed.
In the hall, he states that the security service employees at the "Plansche" only had to take care of compliance with the corona rules at the time.
There were no usage regulations with clothing rules for the water playground in June 2021.
And the district office is not to be held responsible if employees of a private security service exceed their competencies.
The state anti-discrimination law is not applicable in this case.
Because the law deals with the actions of public, not private bodies.
Lawyer Thum disagrees.
The district office commissioned the security service
He does not see any unjustified discrimination anyway, adds lawyer Duhme.
A children's playground is for the free development of children, not adults.
A visit must also be possible for children with parents who are "uptight, conservative, reserved" and who may be bothered by bare breasts.
The security guards only acted because other visitors felt disturbed by the woman's behavior.
"Had it not happened, this unfortunate incident would not have happened."
The judge thinks – and dismisses the lawsuit.
Their reasons are still unknown
The fact that the "splash" is by no means an ordinary children's playground is "obvious," says attorney Thum at the hearing.
This is already evident from the fact that “male nudity” in the form of exposed male breasts was already tolerated there on that day in June 2021.
Even then, the »Plansche« was a place where, like in a swimming pool, »partial nudity was clearly to be expected«.
And the shame of individuals in such a context does not justify discrimination based on sex.
"I'll think about the matter again," says judge Sybille Schmidt-Schondorf after about an hour of hearing.
Three and a half hours later, the spokesman for the Berlin civil courts announced that the chamber had dismissed the plaintiff's claim.
The reasons for the decision are not yet available.
They will also only be communicated to the parties within the next few weeks in the written judgment.
Attorney Thum told SPIEGEL that she was disappointed with the dismissal of the lawsuit.
"Of course, the decision is not a nice sign of the state anti-discrimination law," she says.
The judgment is not final, appeals against the decision are possible.
"We now have to wait for the reasons for the verdict, then we will examine the chances of success of the appeal," says attorney Thum.
