The definition of discrimination
| Author | Karin de Vries |
| Pages | 16-35 |
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2 THE DEFINITION OF DISCRIMINATION
2.1 Grounds of unlawful discrimination explicitly covered
The following grounds of discrimination are explicitly prohibited in the main legislation
transposing the two EU anti-discrimination directives:
sex (including pregnancy, sex characteristics, gender identity and gender expression),
religion or belief,34 political opinion, race, nation ality, sexual orientation,35 civil (marital)
status, age and disability or chronic disease.
2.1.1 Definition of the grounds of unlawful discrimination withi n the directives
The words racial or ethnic origin, religion or belief, disability, age and sexual orientation
are not defined in Dutch equal treatment law. Dutch equal treatment legislation applies
symmetrically, in the sense th at people from both the domin ant group and t he
disadvantaged group are covered. However, as grounds of discrimination have to be
interpreted in concrete cases, some indications ab out the definition of grounds can be
derived from case law.
a) Racial or ethnic origin
The Explanatory Memorandum to the GETA36 stresses that ‘race’ is a broad concept, which
must be interpreted in line with the UN International Convention on the Elimination of
Racial Discrimination (ICERD).37 The concept em braces race, colour, descent and national
or ethnic origin.38 The Supreme Court, as well as the NIHR, uses the ICERD definition of
race. In the EC Implementation Act of 2004, the Government has not deemed it necessary
to explicitly include the notion of ‘ethnic origin ’, since t his is sufficiently captured by this
interpretation of ‘race’.39 The NIHR uses as a yardstick whether the applicant belongs to ‘a
coherent group with collective physical, ethnic, geographical or cultural characteristics and
which distinguishes itself from other groups by common features or a common
behaviour’.40 Sometimes, however, it is difficult to draw th e line between race, ethnicity
and religion.41 If all three grounds were protected in the same sense (as far as the personal
and material scope of the legislation is concerned and the exceptions to the non-
discrimination ground are similar for each of these grounds), that would be no problem.
However, this is not the case in the Dutch legal system (where race is covered more broadly
than religion). Another discussion concerns the exact borderl ine between ‘race / ethnicity’
34 The Dutch terms are ‘godsdienst en levensovertuiging’, which would translate more closely as ‘religion and
philosophical conviction’ rather than ‘religion or belief’. As it definitely encompasses ‘religion and belief’ as
envisaged in EU law the latter terminology is used in this report to avoid confusion.
35 The Dutch terms used are ‘homo- or heterosexual orientation’ instead of sexual orientation for short. This
terminology was adopted at the time when the GETA came into being in 1994 to make it clear that
paedosexual orientation is not regarded as a protected ground. As it covers the same grounds as the
terminology ‘sexual orientation’ under EU law this report uses the latter to avoid confusion.
36 Explanatory Memorandum to the GETA, Tweede Kamer, 1990-1991, 22 014, no. 3 (Memorie van Toelichting
bij de Algemene Wet Gelijke Behandeling).
37 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) of 21 December
1965.
38 Explanatory Memorandum to the GETA, Tweede Kamer, 1990-1991, 22 014, no. 3, p. 13. It should be noted
that the notion of ‘national origin’ only embraces nationality in an ethnic sense. Nationality in a civic sense is
covered by the non-discrimination ground of nationality.
39 Explanatory Memorandum to the EC Implementation Act, Tweede Kamer, 2002-2003, 28 770, no. 3, p. 3.
See also Gerards, J. H. and Heringa, A. W. (2003), Wetgeving gelijke behandeling (Equal treatment
legislation), Deventer, Kluwer, pp. 28-30.
40 See, for example, ETC 1997-119 and 1998-57.
41 In line with the interpretation by e.g. the European Court of Human Rights discrimination against Jews is put
on a par with discrimination on grounds of race. Discrimination against Muslims is not approached in a
similar way.
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and nationality (which is also covered under the GETA).42 In cases concerning hate speech
and insults against a group (see Introduction) the Supreme Court accepted that the ground
‘race’ covers references to nation ality and immigration status ( e.g. ‘Surinamese’,
‘Moroccans’ and ‘asylum seekers’).43 In line with this case law, politician Geert Wilders was
found guilty in 2016 of incitement to racial discrimination against ‘Moroccans’.44 The appeal
against the verdict is still pending.
In g eneral, both Dutch courts and the NIHR tend to interpret the d efinition of ‘race’ as
referring to particular characteristics (e.g. colour, national origin or culture) rather than as
a category resulting from processes of racialisation.45
b) Religion or belief
Religion is also not defined in the Constitution, in the GETA or an ywhere else in the equal
treatment legislation. In the Netherlands the term ‘belief’ is not used. In the Explanatory
Memorandum to the EC Implementation Act, the Government has made it clear that it
wishes to continue u sing the term ‘philosophy of life’ (levensovertuiging), rather than to
the Government, there is no material difference between these two terms. 46 ‘Religion or
belief' is interpreted in a broad sense. In cases that come before th e NIHR and the courts
(including cases concerning the freedom of religion), the Institute and the judges us e a
wide definition of religion and belief. The only restriction to the scope of the concept is that
it should exceed a mere personal convicti on or expression. 47 On the other hand, it is not
necessary that all believers of a certain religion adhere to a certain conviction (e.g. the
wearing of headscar ves by women). 48 Fin ally, it is also established in case law that th e
right not to be discrimin ated against on the ground of religion incorporates both the right
to have religious beliefs or to adhere to a certain philosophy of lif e and the right t o act in
accordance with that religion or belief. 49 Since political opinion is also protected, no sharp
line between belief and political opinion needs to be drawn. The interpretation of all of
these terms is strongly inspired by the case law of th e European Court of Human Rights
(ECtHR) and other international institutions (e.g. the UN Human Rights Committe e).
c) Disability
Dutch equality law does not define disability, as the Government has deemed it
unnecessary and undesirable to do so.50 However, unlike the Employment Equality
Directive, the DDA expressly me ntions ‘chronic disease’ as a ground alongside ‘disability’.
With r egard to the definition, some guid elines can be derived from the travaux
préparatoires of the DDA and the cases of the then ETC (now the NIHR). Criteria mentioned
during the preparation of the Law were, amongst others, the long duration of the disability
42 See, for example, ETC 2011-97 and 2011-98, especially the note to both cases by A. Böcker and S.
Dursum-Aksel, to be found in Foster, C. J. et al. (eds.) (2012), Oordelenbundel 2011 (‘NIHR Opinions
2011’). Nijmegen, Wolf Legal Publishers, pp. 453-464.
43 E.g. Supreme Court 16 April 1996, ECLI:NL:PHR:1996:AD2525; Supreme Court 26 June 2012,
ECLI:NL:HR:2012:BW9189.
44 District Court of The Hague 9 December 2016 (Wilders case) ECLI:NL:RBDHA:2016:15014 (in Dutch)
https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2016:15014. Summary in English:
www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Rechtbanken/Rechtbank-Den-
Haag/Nieuws/Paginas/Wilders-found-guilty-of-insultment-of-a-group-and-incitement-to-discrimination.aspx.
45 E.g. Supreme Court 20 March 2016, ECLI:NL:HR:2016:510; NIHR 23 December 2019, 2019-135.
46 Since the government does not seem to see a difference in meaning, we have translated levensovertuiging
as ‘belief’ in this report. The NIHR, in the English translation of the GETA on its website, also translates
‘levensovertuiging’ as ‘belief’.
47 See, for example, ETC 2007-207.
48 See, for example, ETC 2008-12.
49 See, for example, ETC 1997-46, 2004-112 and 2004-148, as well as the Explanatory Memorandum to the
GETA, Tweede Kamer, 1990-1991, 22 014, no. 3, p. 39-40. And, similarly, Memorandum in Response to the
GETA, 1990-1991, 22 014, no. 5, p. 39-40 (Memorie van Antwoord bij de Algemene Wet Gelijke
Behandeling).
50 Explanatory Memorandum to the DDA, Tweede Kamer, 2001-2002, 28 169, no. 3, p. 9.
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