Implementation of central concepts

AuthorMarlies Vegter
3 Implementation of central concepts
3.1 General (legal) context
3.1.1 Surveys on the definition, implementation and limits of centr al concepts of gender
equality law
In the Netherlands, surveys on the central concepts of gender equality law are infrequently
published. Reports usua lly relate to the practical implementation of gen der equality laws
and the obstacles for such implementation. There are v ery few theoretical works.
In 2017, Janneke Gerards, a professo r of Fundamental Rights at Utrecht University , gave
her inaugural speech on fundamental rights in the present complex society. This speech
can be seen as a theoretical publication, but did not specifically relate t o gender.8
Peter Va s Nun es, a fo rmer attorney-at-law (now retired), published an extensive, 870-
page handbook on almost all aspects of equality law in the Netherlands. The central
concepts of gender equality are mentioned in this book, but the book is more of a practical
than of a theoretical nature.9
In addition, attention was paid to the concept of transgender, in particular because of the
law proposal accepted in 2019 by both Chambers of Parliament.10 This law proposal
includes a prohibition on discrimination on the grounds of sex characteristics, gender
identity and gender expression in the General Equal Treatment Act (GETA). In the
explanatory memorandum, attention is paid to the question of how to define sex
characteristics, gender id entity and gender expression. The memo randum explains that
the aim of the law is not to restrict the interpretation of the concept of gender to a binary
division into women and men, but instead to see gender as a ‘continuum’. The way a
person expresses th eir gender does not have to be congruen t with their gender identity.
The explanatory memorandum also mentions that both the term ‘gender identity’ and the
term ‘gender expression’ are inserted into the law, so as to make clear that the law offers
protection against discrimination to all p eople who do not conform t o stereotypes of the
way men or women look, speak or act.
In line with the above the Minister of Home Affairs announced by letter of 8 July 2019 that
she will submit a law proposal in order to change th e expression ‘hetero- or homosexual
orientation’ in the equalit y legislation into ‘sexual orientation’. 11 The Minister based her
decision inter alia on three expert r eports, by Marjolein van den Brink and Jet Tigchelaar
from Utrecht University, Pieter Cannoot f rom Gent University (Belgiu m) and the NIHR. 12
In these reports, in particular those from Van den Brink & Tigchelaa r and Cannoot, it was
observed that people no longer recognize themselves in closely defined categories as being
heterosexual or homosexual, but that gender a nd sexuality have become more and more
fluid concepts. Gender is more often seen as a ‘continuum’, which may differ from the one
8 Utrecht University, ‘Oratie Janneke Gerards: Grondrechten onder spanning’, 30 March 2017, at
9 Vas Nunes, P.C. (2019), Gelijke behandeling in arbeid (Equal Treatment in Employment), Den Haag, Boom
11 Minister of Home Affairs (2019), Letter to Parliament, 8 July 2019. Available at
12 Van den Brink, M. and Tigchelaar, J. (2019), Van bescherming van hetero- en homoseksuele gerichtheid
naar seksuele gerichtheid in de AWGB en de Grondwet (From the protection of ‘hetero- and homosexual
orientation’ to ‘sexual orientation’ in the GETA and the Constitution); Cannoot, P. (2019), Expert paper over
de noodzaak tot vervanging van de term ‘hetero- of homoseksuele gerichtheid’ door ‘seksuele gerichtheid’
in de AWGB (Expert paper on the need to replace the term ‘hetero- or homosexual orientation’ by ‘sexual
orientation’ in the GETA); NIHR (2019), Discussiepaper over wijziging van de non-discriminatiegrond
seksuele gerichtheid in de AWGB (Discussion paper on the change of the non-discrimination ground sexual
orientation in the GETA). Available at:

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