Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
Closed Contracts Expression
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The Federal Administrative Court of Germany held that military commanders must consider the impact on their professional reputation and trustworthiness when posting personal advertisements on online dating platforms, and must therefore exercise restraint. A well-known female commander in the German Federal Armed Forces had created a profile on the dating portal Tinder and had received a disciplinary reprimand, which she challenged before a military service court. The military service court had held that a soldier has an off-duty duty of good conduct and may not seriously damage the reputation of the armed forces. The Federal Administrative Court found that military commanders must avoid formulations on dating platforms that create the impression of an indiscriminate sex life and a significant lack of integrity of character, and held that the commander’s dating profile was subject to a reprimand as the mildest disciplinary measure.
On August 1, 2019, Anastasia Biefang, a professional soldier in the German Federal Armed Forces (Bundeswehr) and a commander at the rank of Lieutenant Colonel (Oberstleutnant), received a disciplinary reprimand (Verweis). Biefang enjoys wide prominence as the first transgender battalion commander in the Bundeswehr. Her disciplinary superior imposed the disciplinary reprimand on Biefang, alleging that she had posted a profile in the dating app Tinder with her real name, a picture of her in civilian clothing and the following profile text: “Spontaneous, lustful, trans*, open relationship and looking for sex. All genders welcome.”
On August 16, 2019, Biefang filed a complaint against the reprimand. She argued that the behavior described was not a breach of her duties and concerned her private sphere only. Furthermore, she pointed out that the profile text had been coordinated with her spouse and was intended to make clear that no romantic encounter had been intended. Hence, it could not be concluded that she was promiscuous or lacked moral integrity. In addition, her profile was not intended for the public, but only for the closed circle of Tinder users.
The next-level disciplinary superior rejected the complaint on January 16, 2020. The superior asserted that Biefang violated her off-duty duty of good conduct (außerdienstliche Wohlverhaltenspflicht). It was not her promiscuous lifestyle per se that had been reproached for, but the uncontrollable way in which this lifestyle was propagated by Biefang in her prominent position as a battalion commander. This applied irrespective of more liberal attitudes in society on sex-related issues, as promiscuous behavior reduced sexual partners to sexual objects and was also disapproved by large parts of the society.
On February 19, 2020, the Military Service Court South (Truppendienstgericht Süd) rejected Biefang’s complaint. That Court relied on Sec. 17 (2) sentence 3 of the German Act on Soldiers (Soldatengesetz, SG), which states: “When off duty, a soldier shall conduct himself or herself outside official quarters and facilities in such a manner as not to seriously impair the reputation of the Bundeswehr or the respect and trust required by his or her official position.” The Court held that Biefang was allowed to pursue a promiscuous sexual life in private, as protected by her basic rights. However, the violation of her duty of good conduct was the reason for the reprimand, not her sexual life. It found that the wording of her profile text raised doubts about her moral integrity as outsiders would be given the impression that she was reducing herself and her sexual partners to mere sex objects. Because Biefang represented the Bundeswehr in a prominent position, her behavior had a negative effect on the public’s assessment of her moral integrity and the good reputation of the Bundeswehr. The Court held that, in this context, it was irrelevant that Tinder was a closed platform. The Court stressed that Biefang could be recognized by other users due to the regionally limited search scope of her posting on the dating platform and because of her prominent position in the Bundeswehr. For a violation of the off-duty duty of good conduct, such a mere chance of becoming known was sufficient.
In 2021, Biefang appealed to the Federal Administrative Court.
The Second Military Service Senate of the Federal Administrative Court delivered a unanimous decision. The central issue before the Court was whether the reprimand imposed on Biefang was lawful.
Biefang argued that the reprimand was unlawful as her action was not an official offense but a purely private act. She submitted that use of the dating platform Tinder as well as active search for sexual partners fell under the basic right to sexual self-determination, protected by Art. 2 (1) in connection with Art. 1 (1) German Basic Law. Her sexual life belonged to the most intimate area of her personality, which may only be interfered with if there were special public concerns. Moreover, she argued that the regulation of the off-duty duty of good conduct should not interfere with basic rights. Biefang submitted that the Military Service Court’s finding that with the profile text she reduced herself and others to sex objects was an assessment lacking empirical foundation which was neither reasonable nor justified. Biefang maintained that she did not violate her off-duty duty of good conduct as her conduct did not put the reputation of the Bundeswehr or her personal respectability and trustworthiness seriously at stake.
The Court examined the grounds for decision of the Military Service Court on the basis of Sec. 17 (2) sentence 3 German Act on Soldiers (Soldatengesetz, SG), which reads: “When off duty, a soldier shall conduct himself or herself outside official quarters and facilities in such a manner as not to seriously impair the reputation of the Bundeswehr or the respect and trust required by his or her official position.”
The Court held that the Military Service Court wrongly assumed that the reputation of the Bundeswehr had been impaired (Sec. 17 (2) sentence 3 alternative 1 SG). The Court noted that its jurisprudence held that, “the private (mis)conduct of a soldier is in principle not to be attributed to the Bundeswehr as an institution, unless exceptional circumstances necessarily give reason to do so. Serious damage to the reputation of the Bundeswehr exists – only – if the soldier is to be regarded as a representative of the Bundeswehr and his conduct allows negative conclusions on the qualitative training, moral integrity and general attitude to service or, in general, about military discipline in the force” [para. 17]. The Court found that even though Biefang had a representative function in the Bundeswehr, she had appeared within the dating platform Tinder in a purely private capacity. She did not designate her official function, did not wear a uniform and expressed her views on non-military topics only. The Court found that there was no functional link to the Bundeswehr and her conduct did not affect the reputation of the Bundeswehr, as required by Sec. 17 SG.
The Court then assessed whether Biefang’s conduct seriously impaired her personal respectability and trustworthiness (Sec. 17 (2) sentence 3 alternative 2 SG). It set out that for the assessment it was sufficient that from the point of view of an uninvolved third party, the conduct is capable of seriously impairing the respectability and trustworthiness necessary for the performance of official duties. The Court stated that the requirements of respect and trustworthiness in Sec. 17 SG expresses “that the state has a higher expectation of integrity from its public servants. Military superiors in particular can only perform their duties meaningfully if they are respected by their subordinates and by the public and are regarded as trustworthy. This basis of trust can also be seriously impaired or even completely destroyed by off duty conduct not being subject to criminal prosecution” [para. 20].
The Court agreed with the lower court that the higher a soldier’s rank is, the greater the demands on his or her integrity. In this regard, the Court noted that “[i]t makes a difference whether a Lieutenant Colonel is deployed as an employee of a staff unit with no publicity effect or whether he is used as a commander and […] – as in this case – is authorized to issue orders and instructions to approximately 1,000 soldiers and employees” [para. 22].
The Court accepted that the Military Service Court correctly assumed that making the Tinder profile known would have a negative impact on third parties’ evaluation of Biefang’s moral integrity. It stated that “the practice of sexual contact with relatively frequently changing partners is generally tolerated in Western culture as an expression of the right to sexual self-determination” but it however “still contradicts the values of broad sections of the population who, partly for religious and partly for moral reasons, adhere to the guiding principles of monogamy, marital fidelity and the family as the nucleus of society” [para. 26]. This traditional understanding of values was especially common in a military context and in rural areas. Therefore, the Court held that “the assumption of the Military Service Court is close to reality that the complainant’s solicitation of sexual contacts outside her own marriage could have had a detrimental effect on her reputation among the regional public and especially among the troops under her command”, independent of the fact that her partner agreed to it [para. 26].
The Court held that the Military Service Court had not sufficiently considered the importance of basic rights in the area of private life. The Court specifically referred to the right to sexual self-determination in Art. 2 (1) in connection with Art. 1 (1) German Basic Law (Grundgesetz, GG). This right protects “that the individual can arrange his relationship to sexuality and his sexual relations with a partner and in principle decide for himself whether, within what limits and with what aims he wants to accept interference by third parties” [para. 29]. It added that the right to sexual self-determination also protects the individual’s freedom to “to express their sexual interests outside their private sphere and to search for sexual partners on an Internet portal by means of an account and profile picture” [para. 30]. While the protection within the core area of private life is absolutely protected due to its particular closeness to human dignity and therefore not subject to a balancing under the principle of proportionality, the search of sexual partners on the Internet takes place in the social sphere and is therefore subject to restrictions in accordance with the principle of proportionality. Consequently, the Court held that the right to sexual self-determination could be restricted by the provisions of Section 17 SG only if the official interests in respectability and trustworthiness in the military service outweighed the private interests protected by Art. 1 (1) in conjunction with Art. 2 (1) GG.
The Court held that the Military Service Court failed to correctly consider the principle of proportionality and failed with an overall assessment of the circumstances of the individual case. It noted that the balancing exercise could not lead to the conclusion that Biefang had to refrain from using dating apps in the interest of her service. The Court reasoned that “[i]n an open society with a free democratic basic order, the moral behavioral expectations of the majority of the population do not mean that military executives have to completely adapt to this for the purpose of their acceptance in the service” and therefore a soldier’s freedom to pursue his or her sexual lifestyle prevails is also protected by basic rights [para. 32]. Sec. 17 only limits the manner of private activities and requires that the integrity expectations associated with the official position are taken into account in the design and formulation of dating profiles.
The Court noted that the meaning of Biefang’s Tinder profile picture and text had to be determined objectively, if necessary by interpretation.The Military Service Court had disregarded in its interpretation that Tinder “is a virtual advertising medium for the search for a partner, in which potentially interested parties are typically attracted by attractive images and lurid texts. […] However, from the perspective of an uninvolved third party, it is not expressed that the complainant degrades herself or others to a mere sex object” [para. 34]. Accordingly, the Court held that the lower court had inadmissibly overstated the content of the profile text.
However, the Court found that the decision of the Military Service Court was lawful as, after balancing official and private interests, the Tinder profile constituted a breach of Biefang’s off-duty duty of good conduct. The Court held that “because a commander has a special responsibility for personnel […], must act in an integrative manner as part of his representational and executive duties, and must also counter sexist statements and sexual harassment in the exercise of his disciplinary powers, he must show consideration for the respectability and trustworthiness required for his official position when making statements on the Internet with sexual references. This does […] not mean that a commander must refrain from searching for sexual partners on the Internet […]; however, in choosing his words, he must show consideration for his professional position and also avoid formulations that could create the false impression of sexual indiscipline. A disciplinary superior cannot credibly convey educational and disciplinary measures for sexual misconduct if his statements about his own lifestyle indicate an unrestrained acting out of the sexual urge” [para. 37]. It found that Biefang’s profile text was at the first read-through “capable of creating the false impression that she leads an indiscriminate sex life or strives for this” [para. 38]. The Court acknowledged that this impression was not given with the knowledge of Biefang’s motives and proper interpretation of the text on longer reflection, but “[t]his extremely misleading exaggeration of one’s own concern was not necessary for the intended exercise of basic rights and was also not necessary for the effectiveness of the advertisement” [para. 38].
Accordingly, the Court held that Biefang’s formulation of her Tinder profile’s text should have been avoided for the sake of her acceptance in the military service. The disciplinary reprimand Biefang received was the least disciplinary measure possible and, as a sanction, was proportionate.
Accordingly, the Court concluded that the disciplinary reprimand against Biefang was lawful as she had violated her off-duty duty of good conduct.
Note: In 2022, Biefang filed a constitutional complaint before the Federal Constitutional Court against the decision of the Federal Administrative Court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts the freedom to the expression of sexual self-determination of military personnel, because soldiers in a higher military rank may not use dating platforms without considering the impacts on their respectability and trustworthiness, even if the profile does not contain a connection to their professional service in the military. This case ignited a critical debate on the range of the free expression of personality and the right to sexual self-determination in the context of public service, and the use of a specific set of moral values in the lower courts raised particular criticism.
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