The road to inclusivity: where does the Netherlands stand in the emancipation of LGBTQIA+ individuals?

Masuma Shahid - 2023

In the Netherlands, we have taken essential steps in the past decades in the emancipation of LGBTQIA+ (lesbian, gay, bisexual, transgender, queer, intersex, asexual, and other) people. From abolishing discriminatory laws to promoting equal rights and acceptance, our country has made progress on various fronts. However, there are still steps to be taken on the road to an inclusive society where everyone feels at home, regardless of sexual orientation, gender identity, or expression. Masuma Shahid, PhD candidate at Erasmus School of Law, is researching LGBTQIA+ rights. In honour of Pride Month in June, we look back with her at the legal path that the Netherlands has already taken in LGBTQIA+ emancipation. We also look ahead to what still needs to be done.

An essential legal milestone in Dutch history was the abolition of Article 248bis of the Criminal Code in 1971. This article criminalised sexual acts between people of the same sex under the age of 21. Repealing this law marked an essential step towards equality and non-discrimination for same-sex attracted individuals. Heterosexual contacts were already allowed from the age of 16 at that time. "With this equalisation, the Netherlands showed itself to be a pioneer in equality and non-discrimination, values that have always been important for the post-war Netherlands. With this, the Netherlands became one of the first countries to decriminalise homosexuality. The European Court of Human Rights (ECHR) only reached this milestone in 1981 with the Dudgeon v. The United Kingdom ruling," explains Shahid.

A leap forward: in 2001, it was legally determined that same-sex couples could marry. No longer were only heterosexual couples allowed to enter into marriage: an essential step in recognising the love and commitment of individuals, regardless of their sexual orientation. In the twenty years that followed, around 20,000 same-sex couples married in the Netherlands. Additionally, the Netherlands made progress in the field of gender identity and expression when it introduced the Transgender Act in 2014. This law made it easier for transgender individuals to change their official gender registration without being forced into medical procedures or sterilisation. With this law, the Netherlands recognised the right to self-determination and the individual identity of transgender individuals, placing itself at the forefront of gender inclusivity.

"All those present in the Netherlands..."

More recently, on 17 January 2023, the Senate approved an amendment to Article 1 of the Constitution. The amended article explicitly expands the prohibition of discrimination based on sexual orientation and disability. The current provision reads: "All those present in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race, sex, handicap, or sexual preference, or on any other grounds whatsoever shall not be permitted." According to Shahid, the recent expansion of the law is of great value because its explicit inclusion in the Constitution provides clarity and demonstrates that discrimination on these grounds will not be tolerated. It also contributes to improving the position of LGBTQIA+ individuals in Europe by showing the European consensus on specific issues.

While the mentioned achievements have been significant in the path towards an inclusive society, further steps are needed to promote the emancipation of LGBTQIA+ people, according to Shahid: "Recently, it has been revealed that the Netherlands has dropped from the thirteenth to the fourteenth position in the Europe Rainbow Europe Index of ILGA Europe; twelve years ago, the Netherlands was ranked fourth! There are still significant steps to be taken in the Netherlands regarding the protection of intersex or trans individuals, the prohibition of conversion therapy, and hate speech against LGBTQIA+ people. A good example is the Transgender Act. Although establishing the legal position of transgender individuals was a step forward, the current law only allows for the choice between the gender markers 'male' or 'female,' making it inaccessible to non-binary people."

Furthermore, there is still progress to be made in the field of accessible and quality transgender-related healthcare. Transgender individuals may have specific medical needs like hormone treatments and gender-affirming surgeries. Still, they may face obstacles due to long waiting times, limited availability of specialised healthcare providers, and coverage. "However, the Netherlands has done well this week by better legislating surrogacy and eliminating uncertainty. It is no longer forbidden for prospective parents to express their need for a surrogate mother and publicly search for one through advertisements," says Shahid.

"All in all, there is still much to be gained in the Netherlands regarding better protection of LGBTQIA+ rights, inclusion, and emancipation," Shahid continues. "It would be great if the Dutch political sphere actively works towards improving this situation, at least from a legal standpoint, in the next five years so that the Netherlands quickly climbs back to the top ten of the Rainbow Europe Index and resumes its role as a global pioneer!"

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Masuma Shahid - 2023

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