Constitutionalising the Status Quo: Expanding non-discrimination protections to include disability and sexual orientation in the Dutch Constitution

Recently, the Dutch Constitution was amended to include disability and sexual orientation as protected grounds under the non-discrimination provision. This largely supported amendment sparked debates on whether to have a general non-discrimination provision instead of enumerated grounds and whether other grounds, notably age, also deserve constitutional protection. Legally, however, not much will change, since disability and sexual orientation discrimination are already prohibited under civil and criminal law. Further, Dutch courts presently lack competence to assess the compatibility of legislation with the constitutional non-discrimination provision, but this may change in the future – writes associate professor Karin de Vries

Introduction

On 17 January 2023 the Dutch Senate approved a bill to expand the grounds covered by the Dutch Constitution’s key article on the right to non-discrimination to include disability and sexual orientation. The Senate vote constituted the decisive step in a constitutional reform process that began in June 2010 and thus took over ten years to complete. The amendment entered into force on 22 February 2023, following ratification by the government and publication in the official gazette. The amended Article 1 now reads: “All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race, sex, disability, sexual orientation or any other ground whatsoever shall not be permitted.”

A reform ten years in the making

The Netherlands has a rigid constitution, evidenced by the amendment procedure laid down in Article 137 of the Dutch Constitution. The procedure involves two readings in the bicameral parliament with general elections in between. Successful amendments moreover require the support of a two-thirds majority in both Chambers in the second reading. Bills to amend the Constitution may be introduced either by the government or by the House of Representatives (Tweede Kamer). Although it is not uncommon for constitutional amendments to be introduced by the House of Representatives, this is usually done at the initiative of a single political party. But in this case, the proposal to amend Article 1 was initiated by a coalition of three different parties: the liberal-democratic party D66, the green socialist party GroenLinks and the labour party Partij van de Arbeid. The amendment process included a period of inactivity between 2012 and 2017, after the MPs who originally introduced the bill left the House of Representatives and their successors had to decide whether or not to continue the initiative. Extensive debates notwithstanding, the bill received broad support in both readings. The main parties to oppose the amendment were the far-right populist parties Partij voor de Vrijheid and Forum voor Democratie and the orthodox Christian party (SGP). The final voting round in the Senate was originally scheduled for December 2022 but was delayed following a request by the Partij voor de Vrijheid for a roll-call vote, allowing all Senate members to express their vote individually regardless of party lines. The proposal was eventually adopted on 17 January with 56 votes in favour and 15 against (and 4 abstentions).

Background to the reform

The current Article 1 on non-discrimination was introduced into the Dutch Constitution in 1983, as part of an overall revision and a wider fundamental rights catalogue. At the time it was already commonly accepted that disability and sexual orientation constituted protected discrimination grounds that would be covered by the formula “or any other grounds whatsoever.” Both grounds later received explicit protection at the level of statutory legislation. Sexual orientation is included as a protected ground in the General Equal Treatment Act (GETA), which entered into force in 1994 and covers the areas of employment, education and access to goods and services (including housing and healthcare). Protection against disability discrimination is guaranteed through the Disability Discrimination Act (DDA), which entered into force in 2003, and also covers discrimination in the fields of employment, education and goods and services. The Dutch Criminal Code further provides protection against hate speech and hate crime, including on the grounds of sexual orientation and physical, mental or psychological disability.

According to the authors, the proposed amendment served to acknowledge that disability and sexual orientation discrimination are widely regarded as ‘wrong’ in the Netherlands and to ensure continued protection against both forms of discrimination …

It follows that the primary purpose of the constitutional amendment was not to close gaps in the existing legal framework for protection against disability and sexual orientation discrimination. Instead, the initiators aimed to consolidate the protected status of both grounds by including them in the Constitution, which is hierarchically superior to and more difficult to change than statutory legislation. According to the authors, the proposed amendment served both to acknowledge the fact that disability and sexual orientation discrimination are widely regarded as ‘wrong’ in the Netherlands and to ensure continued protection against both forms of discrimination. Before the introduction of the proposal several actors had already expressed support for adding disability and/or sexual orientation to the list of constitutionally protected discrimination grounds, including the Council for People with Chronic Illness or Disability (Chronisch zieken en Gehandicapten Raad), COC Netherlands (an advocacy group for LGBTI people) and the Equal Treatment Commission, the national equality body and predecessor of the Netherlands Institute for Human Rights.

Debates on the amendment: designation vs. general formulation

The bill to amend Article 1 was debated both in parliament, as part of the legislative process, and among legal scholars. Consistent with the aim of the proposal, most of these debates did not concern the need to protect against disability and sexual orientation discrimination as such but focused instead on the desirability and necessity of having (certain) discrimination grounds explicitly outlined in the Constitution and on the criteria for deciding which grounds should be mentioned. Some participants, including the Council of State (the main advisory body to the legislature), argued that it would be preferable to have a generally formulated non-discrimination provision, without any designation of protected grounds. In their view this would allow the courts maximum flexibility in keeping up with social developments and avoid the risk of protection being withheld in cases of discrimination based on grounds not mentioned in the Constitution. Proponents of a generally formulated non-discrimination provision, notably the orthodox Christian party SGP, also warned against ‘grounds inflation’ – a frequently used metaphor in the parliamentary debate was that of ‘putting too many decorations on the Christmas tree’. During the first reading the SGP proposed an amendment with the aim of removing all discrimination grounds from the constitutional non-discrimination provision. This amendment was rejected.

Nationality, civil status and age were suggested in particular as grounds already protected in Dutch statutory law which could therefore also be included in the Constitution.

Other participants in the debate did not oppose the inclusion of designated discrimination grounds, but some raised questions on whether other grounds should also be added and where the line should be drawn between grounds that merit explicit mention and those that do not. Nationality, civil status and age were suggested in particular as grounds already protected in Dutch statutory law which could therefore also be included in the Constitution. The initiators of the bill argued that including a list of grounds in the Constitution signalled which forms of discrimination are widely considered as particularly serious and thus needing special protection. Regarding the criteria for inclusion, they asserted that the proposed and existing grounds in Article 1 shared a common feature: they concerned grounds that could never or only rarely justify a difference in treatment and that, moreover, a certain level of consensus had been reached in public debate regarding their discriminatory nature. Adding disability and sexual orientation to the existing list of grounds would therefore, according to the proponents of the bill, help to keep the Constitution up to date.

A proposal to add the ground of age was proposed in the first reading by the 50PLUS party but was rejected. The Council of State had advised against this amendment as, in their view, age differed from disability and sexual orientation because of the many situations in which differences in treatment on the grounds of age may be objectively and reasonably justified. As examples, the Council mentioned, amongst other things, the legal voting age, the statutory pension age and age requirements for the military and the judiciary. In the Senate it was questioned whether sex characteristics, gender identity and gender expression should be explicitly included in Article 1 of the Constitution. The initiators responded that this was unnecessary as it had just been specified, through an amendment of the GETA, that these grounds are included under the term ‘sex’.

The importance of terminology

The original proposal for the constitutional amendment used the term ‘hetero- or homosexual orientation’ instead of ‘sexual orientation’. The former is the term used in the GETA and the Criminal Code, where it was introduced to clarify that paedophilia is not covered. The term ‘hetero- or homosexual orientation’ has been interpreted in Dutch law as including bisexual orientation. Nevertheless, the authors of the constitutional amendment considered that the term ‘sexual orientation’ was more inclusive, especially towards lesbians and bisexuals, and chose to amend the bill during the first reading. It was explicitly stated in the course of the legislative debate that the change in terminology was not intended to include paedosexuality as a protected ground. Meanwhile, the Dutch Government announced that the GETA and Criminal Code will also be amended to include the term ‘sexual orientation’ instead of ‘hetero- or homosexual orientation’. A proposal to this effect was submitted for public consultation in 2021 but has not yet been introduced in parliament.

Impact of the amendment

Finally, regarding the effect of the constitutional amendment, it must be mentioned that the Dutch legal system, under Article 120 of the Constitution, does not currently offer the possibility of judicial review of statutory laws. Although the amendment places the status of disability and sexual orientation as protected grounds beyond any doubt, it does not change the fact that Dutch courts presently lack competence to assess the compatibility of statutes with the constitutional non-discrimination provision. This may change in the future, however, as the Dutch Government has announced its intention to propose another constitutional amendment with the purpose of introducing constitutional review. One of the principal motivations behind this development can be found in the report of the Committee of State on the functioning of the parliamentary system (Staatscommissie parlementair stelsel), issued in 2018, which recommended the introduction of constitutional review as a means to strengthen the rule of law in the Netherlands.

Karin de Vries is associate professor of constitutional law at Utrecht University and a researcher with the Montaigne Centre for Rule of Law and Administration of Justice.

This contribution is based on the text of a flash report prepared by the author for the European Equality Law Network (www.equalitylaw.eu).

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Suggested citation: Karin de Vries, ‘Constitutionalising the Status Quo: Expanding non-discrimination protections to include disability and sexual orientation in the Dutch Constitution’, ConstitutionNet, International IDEA, 27 February 2023, https://constitutionnet.org/news/constitutionalising-status-quo-expanding-non-discrimination-protections

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