Implementation of central concepts

• Author: Vegter, Marlies
• Pages: 8-20

8

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

undergo.

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 Transgender Netwerk Nederland (2019), Meldingen transgender discriminatie 2018 (Reports on transgender

discrimination 2018), 2019. Available at: https://www.transgendernetwerk.nl/wp-

content/uploads/20190423-discriminatiemonitor-2018.pdf.