Jo Doe goes online shopping

Jo is non-binary, and therefore neither Dear Mrs nor Dear Mr Doe. If Jo wants to go shopping online, there is one significant difference from John and Jane Doe: among other things, Jo has to face the risk of discrimination that comes with an incorrect gendered form of address. This essay sheds light on what that means for Jo, and on what consumer protection has to do with discrimination in the digital space, drawing on current findings from research on discrimination.

Research on discrimination examines where, how and why historically entrenched notions of unequal worth and unequal power relations within a society (such as racism, heterosexism and sexism, ableism, classism, antisemitism) lead to unjustified unequal treatment. In doing so, it does not understand discrimination exclusively from a legal perspective. And yes, when it comes to consumer protection in particular, the focus is above all on regulations and laws, which are necessary and which are applied in order to establish protection for customers or to penalise the absence of such protection.Thus protection against discrimination in the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG) is defined in relation to ‘access to and supply of goods and services which are available to the public, including housing’ (AGG, Section 2 (1)). But discrimination must always also be considered more broadly and from other perspectives. For which discrimination-related aspects ultimately make it into the law (the scope of the AGG, for example) is the result of a political process of negotiation, preceded by decades of political commitment on the part of various movements of marginalised communities (the anti-racism, disability rights and queer movements, among others). That process always takes place within a particular Zeitgeist, and the legal definition of discrimination therefore only ever covers a section of the entire phenomenon. At present the AGG is being reformed after twenty years – an urgently necessary step, not least because digitalisation and the digital space as a field of application have so far not been explicit subjects.

A recent representative survey on discrimination in Germany shows that people who are confronted with discrimination report it for the most part in relation to goods and services. This underlines the socio-political role that consumer protection plays for a society's protection against discrimination. The extent to which these experiences of discrimination took place in the digital space cannot be inferred from the survey. The digital space as a site of discrimination is also increasingly coming into the focus of research: algorithm-based discrimination in the context of AI and automated decision-making processes, for example. With regard to individual experiences of discrimination in the digital space, the focus is often on discrimination that emanates from individuals (hate speech, for example) rather than on the technologically institutionalised level. In the context of consumer protection and discrimination in goods and services in particular, however, it is important not to look exclusively at comment sections, but at technical tools, automated processes and algorithm-based instruments in online retail.

And with that, back to Jo. In order to fill this gap, a study by the research project ‘Discrimination in goods and services in the digital space’ sent a fictitious non-binary person – Jo Doe, essentially – shopping in Germany's hundred highest-grossing online shops. The systematic analysis of this sprawling shopping spree showed that in 65 of the 98 online shops examined, Jo was asked about gender as early as the opening of a customer account. More than half of these 65 online shops offered no non-binary answer options (n = 34). In 59 online shops, stating a gender was even mandatory in order to go shopping. It emerged that in 33 online shops Jo was forced to make a false binary gender declaration. For non-binary people, this constitutes yet another instance of discrimination in everyday life. Even though this is supposedly a banal situation, it nonetheless sends the message: ‘You do not exist for us.’ The finding illustrates how automated questions about gender – questions that many people take for granted – need to be scrutinised through an anti-discrimination lens. And Jo has barely begun the purchasing process. Discriminatory forms of address, the project findings show, can also occur in the shop's automated welcome email or in communications from customer support.
 
Binary gender as a social norm leads to discrimination against non-binary people, not only in contexts such as family, school and politics, but in the digital space too. In online retail, too, people who live outside and independently of the gender ascriptions man and woman are often – whether intentionally or not – not thought of, not addressed, or devalued. The result is unequal treatment that joins the ranks of numerous similar everyday situations. Protecting all consumers therefore includes more than protection against a lack of fairness in the power relationship between company and customer. In a democratic society in which the digital space is becoming ever more significant as a sphere of life, consumer protection should always also focus on safeguarding against discrimination, at the individual and the technological level. Protection against discrimination is a core task of consumer protection in the digital realm too, until all services, products and digital sales processes no longer address themselves exclusively to John and Jane Doe.