LGBT rights in the Netherlands

LGBT rights in the Netherlands Netherlands
Location of  the Netherlands  (dark green)

– in Europe  (light green & dark gray)
– in the European Union  (light green)  –  [Legend]

Same-sex sexual intercourse legal status Legal since 1811
equal age of consent since 1971
Gender identity/expression Transgender persons allowed to change legal gender, only after a diagnosis but without surgery or hormone therapy
Military service LGBT people allowed to serve openly
Discrimination protections Sexual orientation protections
Family rights
Recognition of
relationships		 Registered partnerships since 1998
Same-sex marriage since 2001
Adoption Same-sex couples may jointly adopt

Lesbian, gay, bisexual, transgender (LGBT) rights in the Netherlands have been some of the most progressive in the world.[1] Same-sex sexual activity was legalized in 1811 after France invaded the country and installed the Napoleonic Code, erasing any remaining sodomy laws and no more were enacted after the country received independence, with the equal age of consent equalized since 1971. During the late 20th century, awareness surrounding homosexuality grew and society became more tolerant of homosexuals, eventually leading to its declassification as a mental illness in 1973 and a ban on discrimination based on sexual orientation in the military. The Equal Rights Law, enacted in 1994, bans discrimination on sexual orientation on the grounds of employment, housing, public accommodations, and more. After the country began granting same-sex couples domestic partnerships benefits in 1998, the Netherlands became the first country in the world to legalize same-sex marriage in 2001. Same-sex joint and stepchild adoption are also permitted. Lesbian couples can get access to IVF as well.

The Netherlands has become one of the most culturally liberal countries in the world,[2] with recent polls indicating that more than 90% of Dutch people support same-sex marriage. Amsterdam has frequently been named one of the most LGBT-friendly cities in the world,[3] famous for its many accommodations specifically pertaining to the LGBT community, including its many gay bars, bathhouses, hotels, and venues as well as Pink Point, which provides LGBT-friendly information and souvenirs, and the national Homomonument, which was completed in 1987 and was the first monument in the world to commemorate homosexuals who were persecuted and killed during World War II.[4]

Law regarding same-sex sexual activity

Between 1730 and 1811, sodomy was considered a capital crime by the Dutch Republic, resulting in widespread panic throughout the Netherlands and the persecution of hundreds of homosexuals.[5] After the French invaded and installed the Napoleonic Code in 1811, all laws against same-sex sexual activity between consenting adults in private were repealed. After the Dutch received independence in 1813, no new sodomy laws were enacted. The Christian-based political parties enacted Article 248bis of the Penal Code in 1911, which raised the age of consent for same-sex sexual activity to 21 whilst the age of consent for heterosexual activity remained at 16. Laws citing public indecency were also often used against homosexuals.

During World War II, the German Nazis introduced Paragraph 175 into Dutch law, which prohibited any same-sex sexual activity once again. The law was repealed after the end of the war.

During the mid-20th century, Dutch psychiatrists and clergy began viewing homosexuality less critically and in 1973, homosexuality was no longer treated as a mental illness. This made way for homosexuals to serve in the military. Article 248bis was repealed in 1971, which equalised the age of consent for same-sex sexual activity.

Recognition of same-sex relationships

Two men marrying in Amsterdam, in the first month after the possibility to marry was opened to same-sex couples (2001)

The Dutch Parliament began granting same-sex couples domestic partnerships benefits on 1 January 1998 as an alternative for marriage, which were also allowed for opposite-sex couples.[6] The Netherlands became the first country in the world to legalize same-sex marriage in 2001, with the law coming into effect on 1 April.[7] During that day, Job Cohen, the Mayor of Amsterdam, married four same-sex couples after becoming a registrar specifically to officiate weddings.[8] The bill had passed the House of Representatives by 109 votes against 33.[9] Although same-sex marriages can be performed in the European territory of the Netherlands and the Caribbean Netherlands territory including Bonaire, Sint Eustatius and Saba, same-sex marriages performed in Aruba, Curaçao and Sint Maarten, which are constituent countries of the Kingdom of the Netherlands, are not officially valid. As a result of article 40 of the Charter for the Kingdom of the Netherlands, same-sex marriages performed anywhere else in the Kingdom must be recognized in all territories,[10] however, they are not required to guarantee equal treatment of same-sex couples with valid marriage licenses.

Before 2014, civil servants (marriage officiant) could refuse to marry same-sex couples as long as the municipality ensured that other civil servants were available to solemnize the marriage. In 2014, a law was passed that made it illegal for all marriage officiants to refuse their services to same-sex couples.[11]

Adoption and parenting

Same-sex adoption was legalized alongside same-sex marriage in 2001, which includes joint and stepchild adoption. The Dutch Parliament also began allowing same-sex couples to adopt children overseas in 2005. Lesbian couples can get access to IVF treatment, as well as parentage rights for their children. Altruistic surrogacy is legal in the Netherlands.[12] Only commercial surrogacy is illegal in the Netherlands , regardless of sexual orientatiin. Although altrustic surrogacy is legal, there is only one hospital taking in couples and there are extremely strict rules to get in. This makes a lot of couples seek their treatment outside the Netherlands.[13]

Discrimination protections

LGBT flag map of the Netherlands

The Dutch Parliament enacted the Equal Rights Act in 1994, which bans discrimination on the grounds of sexual orientation in employment, housing, and both public and private accommodations.[14] Transgender people are protected under the category "gender". Although gender identity is not specifically mentioned, there have been cases where the Dutch Institute for Human Rights has ruled that transgender people fall under this clause. However, in 2014, the Ministry of the Interior and Kingdom Relations started exploring how the ban on discrimination based on gender identity and gender expression can be made explicit in the Equal Rights Act. The results were published on 23 June 2016.[15] The report stated that although discrimination against transgender people is forbidden, it recommended enacting explicit prohibition in the Equal Rights Act. The report also recommended banning discrimination against intersex people. On 16 January 2017, the political parties D66, PvdA and GL published a bill to amend the Equal Rights Act. The bill would explicitly add sexual characteristics, gender identity and gender expression to the list of anti-discrimination grounds.[16] The bill was approved by the House (127-23) on 3 July and now awaits consideration by the Senate.[17] In addition, a motion was passed (123-27) that requested the Government to investigate whether it is legally possible to replace the term "heterosexual or homosexual orientation" with the term "sexual orientation" to include all orientations, including bisexual and asexual people.[18]

Recently, a loophole was fixed in the Equal Rights Act. Before this religious schools financed by the Government were not allowed to fire or deny teachers on the "single fact" of someone's sexual orientation. However, some schools had interpreted this, that they could fire a teacher for behaviours outside of the facility that went against the ethos of the school. This resulted in the termination of a teacher in 2005 for being in a same-sex relationship.[19] This law was called "de enkelefeitconstructie" (the "single fact" construction). A bill that removed the "single fact" rule and ensured that LGBT students and teachers cannot be fired because of their sexual orientation was debated in Parliament in 2014.[20] On 27 May 2014, this bill was approved by the vast majority of the House of Representatives (141-9) and on 10 March 2015 the bill was approved by the Senate (72-3). The bill went into full effect on 1 July 2015.[21]

Gender identity and expression

In December 2013, the Dutch Parliament overwhelmingly approved a bill that would allow transgender people to legally change their gender on their birth certificates and other official documents without undergoing sterilization and sex reassignment surgery.[22] The law took effect in 2014. Additionally, transgender people are allowed to serve openly in the military.

Since 1970, it has been possible to state on a birth certificate "sex cannot be determined", when the sex of a newborn baby is unclear. On 28 May 2018, the District Court of Limburg ruled in favour of a Dutch citizen who wished to be recognized as a "third gender" on their birth certificate. Although current laws do not provide for the possibility to be registered as a "third gender", the judge did grant the request for the wording "sex cannot be determined". The Court urged lawmakers to provide more options than the current generic "male" and "female" boxes, because the absence of a gender-neutral option is a violation of private life, the right to self-determination and personal autonomy for both transgender and intersex persons.[23] The Dutch Government is currently examining the legal consequences of the ruling.[24]

Conversion therapy

Organizations offering conversion therapy in the Netherlands are not eligible for subsidies.[25] In addition, since June 2012, conversion therapies have been blocked from coverage by healthcare insurance.[26]

Blood donation

In the Netherlands, as in many other countries, men who have sex with men (MSM) were previously not allowed to donate blood.[27] The MSM population in developed countries tends to have a relatively high prevalence of HIV/AIDS infection,[28] so a blanket ban was enforced until 2015. In April 2012, the House of Representatives voted on a motion that would make an end to this ban and would make sexual risk behaviour the criteria for blood donation; in response the Government asked the blood bank Sanquin and Maastricht University to investigate whether men who have sex with men should be allowed to donate blood.[29] The report presented on 6 March 2015 showed that there were medical scientific grounds to adjust the donor selection policies around men who had sex with other men. This took away the main argument of safety risks. On 28 October 2015, the Minister of Health, Welfare and Sport announced that a 12-month deferral on donating blood would replace the existing lifetime ban.[30][31]

Public opinion

According to a poll conducted in May 2013, Ifop indicated that 85% of the Dutch population supported same-sex marriage and adoption.[32] A European Union member poll conducted in 2015 indicated that 91% of the Netherlands supported same-sex marriage, which was the highest amount of support during that time.[33] In the Caribbean territories of the Kingdom, the citizens are mostly religious, resulting in larger opposition of same-sex marriage in comparison to the European territory.

Living conditions

Amsterdam Gay Pride 2014
Amsterdam Pride attracts thousands of people every year. It includes of a parade of boats, as shown here in 2017.

The Netherlands has frequently been referred to as one of the most gay-friendly countries in the world,[34][35] on account of its early adoption of LGBT rights legislation and tolerance perception. Amsterdam has been referred to as one of the most gay-friendly cities in the world by publications such as The Independent.[36] The annual gay pride festival has been held in Amsterdam every year since 1996.[37] The festival attracts several hundred-thousand visitors each year and thus one of the largest publicly held annual events in the Netherlands. Amsterdam has also been host city of the Europride twice, in 1994 and 2016. The latter attracted more than 560,000 visitors.

According to a 2016 rapport from the Netherlands Institute for Social Research, most Dutch have a positive attitude towards homosexuality. Only 7% of the Dutch viewed homosexuality and bisexuality negatively and 10% viewed transgender people negatively. However, 3.8% of gays and lesbians were victims of violence, compared to 2.4% of heterosexuals. And 32% of the respondents stated they would take offence when seeing two men kiss and 23% when seeing two women kiss (and 12% when seeing two people of the opposite sex kiss).[38]

In April 2017, a same-sex couple was attacked by a group of Moroccan youth in the city of Arnhem. After the attack, several politicians, police officers, priests and many others showed their opposition to LGBT violence by holding hands in public. Displays also occurred in other countries, namely the United Kingdom, the United States and Australia.[39][40] Approximately 400 to 600 attacks against LGBT people occurred between 2011 and 2017, according to LGBT group COC.[41]

Summary table

Right Yes/No Note
Same-sex sexual activity legal Since 1811
Equal age of consent Since 1971
Anti-discrimination laws in employment Since 1994
Anti-discrimination laws in the provision of goods and services Since 1994
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) Since 1994
Anti-discrimination laws concerning gender identity (Pending)[42][43]
Same-sex marriage(s) Since 2001; first country in the world to legalize
Recognition of same-sex relationships Domestic partnership benefits since 1998
Stepchild adoption by same-sex couples Introduced with same-sex marriage in 2001
Joint adoption by same-sex couples Introduced with same-sex marriage in 2001
LGBT people allowed to serve openly in the military Since 1973
Right to change legal gender Since 1985 and since 2014 without surgery
Third gender recognised Since 2018, as "sex cannot be determined"[44]
Conversion therapy banned / See Conversion therapy
Access to IVF for lesbians Since 2003
Automatic parenthood for both spouses after birth Unknown sperm donor only for lesbian couples
Commercial surrogacy for gay male couples Commercial surrogacy is illegal for all couples regardless of sexual orientation; only altruistic surrogacy is legal
MSMs allowed to donate blood / Since 2015, subject to 1 year deferral from sexual activities; blood cells only, not blood plasma[31]

See also

References

  1. ↑ "European Countries Among Top Places for Gay People to Live". Gallup. June 26, 2015.
  2. ↑ "Ministerie van Volksgezondheid, Welzijn en Sport". Retrieved 14 January 2015.
  3. ↑ "Amsterdam In 2001, the Netherlands became the first country in the world to". The Independent. Retrieved 14 January 2015.
  4. ↑ "Gay Amsterdam". Retrieved 14 January 2015.
  5. ↑ Murphy, Timothy (18 October 2013). Reader's Guide to Lesbian and Gay Studies. Routledge. p. 418. ISBN 9781135942342. Retrieved 24 June 2015.
  6. ↑ "Archived copy" (PDF). Archived from the original (PDF) on 3 March 2016. Retrieved 2011-12-26.
  7. ↑ "Archived copy". Archived from the original on 5 February 2010. Retrieved 2009-10-08.
  8. ↑ "BBC News - EUROPE - Dutch gay couples exchange vows". Retrieved 14 January 2015.
  9. ↑ "Dutch Legislators Approve Full Marriage Rights for Gays". 13 September 2000. Retrieved 14 January 2015.
  10. ↑ "wetten.nl - Wet- en regelgeving - Statuut voor het Koninkrijk der Nederlanden - BWBR0002154". Retrieved 14 January 2015.
  11. ↑ (in Dutch) Initiatiefvoorstel-Pia Dijkstra en Schouw Gewetensbezwaren ambtenaren van de burgerlijke stand
  12. ↑ Surrogate mothers
  13. ↑ Administrator. "International Surrogacy Laws". www.familylaw.com.ua.
  14. ↑ "Equal Rights Act".
  15. ↑ Verkenning expliciteren verbod van discriminatie op grond van genderidentiteit en genderexpressie in de Algemene wet gelijke behandeling (Awgb)
  16. ↑ "Initiatiefvoorstel: 34650". Retrieved 19 January 2017.
  17. ↑ Eindelijk: officieel verbod op transgenderdiscriminatie
  18. ↑ "Motion: 34650-10". Retrieved 8 July 2018.
  19. ↑ "Leaked Dutch report says schools can ban gay teachers". PinkNews. Retrieved 14 January 2015.
  20. ↑ LGBT and Gender Equality Policy Plan of the Netherlands 2011-2015
  21. ↑ "Initiatiefvoorstel: 32476".
  22. ↑ Dutch Transgender Rights Bill Approved By Senate
  23. ↑ "Court Ruling (in Dutch)".
  24. ↑ Dutch Court Signals Need for Gender Neutral Option
  25. ↑ Dirks, Bart. "Christelijke stichting verliest toch homo-subsidie". de Volkskrant (in Dutch).
  26. ↑ De Wever, Robin. "'Alleen stoppen met vergoeding homotherapie is niet genoeg'". Trouw (in Dutch).
  27. ↑ "Hiv: risicofactoren voor mannen" (in Dutch). Sanquin Bloedvoorziening. Archived from the original on 6 April 2015. Retrieved 10 August 2014.
  28. ↑ "5". 2006 Report on the global AIDS epidemic (PDF). UNAIDS. December 2006.
  29. ↑ "Equal rights for LGBTS". government.nl. Government of the Netherlands. Retrieved 10 August 2014.
  30. ↑ Ban Lifted On Gay Male Blood Donations, Advocates Critical Of New Restrictions
  31. 1 2 Williams, Joe (2015-10-29). "Netherlands ends liftime blood ban on gay and bisexual men". PinkNews. Retrieved 2016-02-07.
  32. ↑ "Archived copy" (PDF). Archived from the original (PDF) on 1 February 2016. Retrieved 2015-05-26.
  33. ↑ "Special Eurobarometer 437: Discrimination in the EU in 2015" (PDF). European Commission. October 2015. Archived from the original (PDF) on 22 January 2016.
  34. ↑ McDaid, Mark (20 May 2013). "The Netherlands is one of Europe's most gay-friendly nations". Netherlands: IamExpat. Retrieved 10 August 2014.
  35. ↑ Baird-Remba, Rebecca. "13 Countries That ArMore Gay Friendly Than America". Business Insider. Business Insider Inc. Retrieved 10 August 2014.
  36. ↑ Field, Marcus (17 September 2008). "The Ten Best Places In The World To Be Gay". independent.co.uk. The Independent. Retrieved 10 August 2014.
  37. ↑ "Amsterdam Gay Pride". Amsterdamgaypride.nl. Retrieved 9 January 2011.
  38. ↑ "LGBT Monitor 2016".
  39. ↑ Dutch men hold hands against anti-LGBT violence
  40. ↑ Coalition negotiators condemn anti-gay violence after attack in Arnhem
  41. ↑ Dirks, Bart. "Christelijke stichting verliest toch homo-subsidie". de Volkskrant (in Dutch). Retrieved 24 June 2018.
  42. ↑ "Initiatiefvoorstel: 34650". Retrieved 19 January 2017.
  43. ↑ Eindelijk: officieel verbod op transgenderdiscriminatie
  44. ↑ "Rechtbank oordeelt dat de tijd rijp is voor erkenning van een derde gender" (in Dutch). Retrieved 1 September 2018.
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