On 17 January 2023, the Senate voted to amend Article 1 of the Constitution for the second time. The changed law explicitly extends the prohibition of discrimination to sexual orientation and disability. The LGBTIQ+ community, advocacy organisations, and politicians are positive about the upcoming amendment to the Constitution because it explicitly recognises sexual orientation and disability in the law. However, critics say that in fact nothing will change from a legal standpoint, as Article 1 of the Constitution already prohibits discrimination “on any ground”. Masuma Shahid, a PhD Candidate at Erasmus School of Law, researches LGBTIQ+ rights and puts the constitutional change in its legal context. According to Shahid, this change certainly does have a legal impact.
Article 1 of the Constitution currently reads: 'All who are in the Netherlands shall be treated equally in equal cases. Discrimination because of religion, belief, political affiliation, race, gender or on any other ground is not allowed.' In the near future, 'sexual orientation and disability' will also be added to the enumeration in the second sentence.
According to Shahid, supplementing Article 1 of the Constitution is by no means unnecessary: “People today are still discriminated against on the basis of their sexual orientation or on the basis of disability or illness, despite the fact that the Constitution already does not allow discrimination on such grounds. The amendment ensures that the protection of people on these grounds is once again explicitly enshrined so that there really is no more ambiguity.”
Beaten up, scolded, and fired
Because the ban on discrimination already prohibits discrimination on any ground, critics may see this amendment as redundant. Shahid, however, stresses the added value of the amendment: “Legally, we can argue whether this amendment is really going to change anything because it already mentions 'on any ground', but don't forget how important its symbolic value can be for people who are being scolded or discriminated against on a daily basis. Studies show that the rights of people with disabilities have been in bad shape for years; there are also daily reports of people in the LGBTIQ+ community being beaten up, scolded, or fired on grounds of their sexual orientation. Its prominent positioning in the Constitution not only provides recognition and visibility, but more importantly sends a message to society that discrimination on these grounds is really unacceptable.”
While the effects of the amendment may not be noticeable straight away, the Constitutional amendment will have significant legal impact, Shahid explains: “It often takes time - 10, 20, sometimes up to 40 years - before we start seeing the impact of law amendments in practice. Employers need to pay extra attention, the government needs to make additional policies to ensure that these groups do not experience discrimination, and society needs to become aware that these are now constitutionally protected rights. Where these grounds were previously overlooked, they should now be explicitly included in certain policy decisions.”
Inclusivity in the Netherlands
Shahid's research also shows that this change has international relevance and receives international attention: “In my PhD research I see that European judges, such as the European Court of Human Rights, do look at legislative changes and newly adopted laws and factor them into their judgements. These kinds of changes show what kind of 'consensus' there is on a particular issue in a country and what, according to the Court, should then be the discretionary space for those countries to adopt measures that have a discriminatory impact on that kind of group of people in society. This forces other countries to take non-discriminatory measures too.”
The upcoming amendment to the Constitution is a victory for more inclusivity in the Netherlands, concludes Shahid: “The Netherlands has always been a pioneer in protecting certain minority groups. However, recent studies show that the Netherlands has been losing this pioneering position for years, so it is good to once again firmly enshrine important norms and values like equality and non-discrimination in the Constitution.”