Implementation of central concepts

• Author: Marlies Vegter
• Pages: 8-20

8

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

https://www.uu.nl/nieuws/oratie-janneke-gerards-grondrechten-onder-spanning.

9 Vas Nunes, P.C. (2019), Gelijke behandeling in arbeid (Equal Treatment in Employment), Den Haag, Boom

Uitgevers.

10 https://www.eerstekamer.nl/wetsvoorstel/34650_initiatiefvoorstel_bergkamp.

11 Minister of Home Affairs (2019), Letter to Parliament, 8 July 2019. Available at

https://zoek.officielebekendmakingen.nl/kst-34650-13.html#ID-893729-d36e93.

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:

https://www.tweedekamer.nl/kamerstukken/detail?id=2019D30333&did=2019D30333.