Implementation of central concepts

AuthorVegter, Marlies
3 Implementation of central concepts
3.1 General (legal) context
3.1.1 Surveys on the definition, implementation and li mits of central 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 gender 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 ri ghts in th e present complex society. This speech
can be seen as a theoretical publication, but did not specificall y relate to gender.8
Peter Va s Nune s, a former 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 characte ristics, gender
identity and gender expression in the General Equal Treatment Act (GETA). In the
explanatory memorandum, attenti on is paid to the question of how to define sex
characteristics, gender ident ity 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 an d men, but instead to see gender as a ‘continuum’. Many pe ople
resist the division into men and women only, and the law therefore wants to avoid this
division. The way a person expresses their gender does not have to be congruent wi th
their gend er i dentity. 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 people who do not conform
to stereotypes of the way men or women look, speak or act. It remains to be seen whether
this law will have m uch practical effect. Already the basic assump tion is that the con cept
of gender includes not onl y discrimination because of being mal e or female, but all forms
of discrimination that are somehow related to a person’s gender or the way a person
experiences or expresses gender.
In 2018 the Transgender Network Netherlands (TNN) reported that discrimination against
transgender people had increased by 25 %.11 In June 2019 TNN and other organi sations
asked, inter alia, for attention to be paid to bullying on the internet, abuse of transgender
children, medical treatments of intersex people without their consent, regulation for
alternative forms of parenting and more focus on the consequences of i ntersectionality.
From cases brought before the NIHR it appears that transgender and intersex people face
difficulties in using the facilities of sports clubs, saunas, fitness cl ubs, etc. There are also
health insurance policies wh ich do not cover certain treatments that t ransgender people
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 Transgender Netwerk Nederland (2019), Meldingen transgender discriminatie 2018 (Reports on transgender
discrimination 2018), 2019. Available at:

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