1. Laws covering sexual activity
| Same-gender sex: |
|---|
| males | Legal |
females | Legal |
|---|
| Age of consent: |
|---|
| males | 16 |
females | 16 |
|---|
| straight | 16 |
|---|
There are no remaining anti-lesbian or anti-gay provisions in Dutch Criminal law. Until 1971, lesbian and gay sex between an adult and a minor (meaning under 21) was an offence. Today, the legal age of consent is 16 years for lesbians, gays and straights. (Astrid Mattijssen and Mirjam Turksma in "Equality for Lesbians and Gay Men")
"Sadomasochistic sexual relations are not punishable". (Martin Moerings - "Socio-legal Control of Homosexuality")
" Sex between an adult and a young person between the ages of 12 and 16 is permitted by law, as long as the young person consents. It may only be prosecuted by complaint from the young person or the young person’s parents. The question remains whether the public prosecutions department would proceed to prosecute if the young person himself had consented and his parents filed the complaint". (Martin Moerings - "Socio-legal Control of Homosexuality") |
3. Anti-Discrimination and Anti-Vilification Legislation
Anti-discrimination laws and cases:
"Although homosexuality is not explicitly mentioned in the Dutch Constitution, lesbians and gays are protected by the non-discrimination article of the Constitution (Article 1 DC). In 1983, the Dutch Constitution was amended to state that all forms of discrimination were prohibited. Although neither the term "sexual preference" nor any synonym were explicitly mentioned as grounds for protection against discrimination, discrimination against homosexuals is forbidden by the Constitution owing to parliamentary documents and legal precedent which place sexual orientation under the protection of the first article of the Constitution. ( Dutch Lower Chamber 1975-1976, 13872, no 4. Schedules of Explanatory Memorandum, p. 87. The revised Dutch Constitution came into force in 1983. It does not explicitly mention homosexuality, but does state: "...discrimination based on (...) sex or on any grounds whatsoever shall not be permitted".)"
In 1992, criminal protection against discrimination on grounds of homosexuality came into force. Existing articles on racial discrimination had the terms "homosexual and heterosexual orientation" added. As a result [incitement to hatred, to discrimination and to violence targeted at a group of persons because of their sexual orientation]* became an offence. The same applies to publicly expressed discriminatory remarks and participating in or encouraging discrimination (Articles 137c, d, e and f of the Penal Code). Also banned is discrimination against gays and lesbians by a person in the performance of his/her public function, profession or business (Article 429quater of the Penal Code).
The General Equal Treatment Act came into force in September 1994, after a battle of more than 15 years by the lesbian and gay movement. It prohibits discrimination on grounds of an individual’s religion, belief, political conviction, race, sex, heterosexual or homosexual orientation or civil status in the fields of labour, housing, medical care and access to goods and services.
One clause in this act led to a controversy: the escape clause for religious institutions, such as private denominational schools. Thus, a Christian school is allowed to make demands of its staff in the light of its principles. However, no distinction may be made on the basis of homosexual orientation alone. An example: In a recent case before the Equal Treatment Commission, the lesbian study group Sappho and the gay study group Saint Sebastian claimed that the Catholic Theological University of Utrecht had excluded them because they deal with homosexual theology. The university’s reason for the policy was fear that papal recognition would be withheld. The Equal Treatment Commission found that the University had violated Article 7 of the General Equal Treatment Act, which prohibits schools from discriminating on the grounds of homosexual orientation.
(Astrid Mattijssen and Mirjam Turksma in "Equality for Lesbians and Gay Men", with *use of more precise text provided by Kees Waaldijk)
Martin Moerings provides further elucidation of this escape clause: "The compromise reached is that such schools [religious institutions] may bar gay teachers if this is necessary for the fulfilment of their functions. This means that a distinction may be made between gay teachers who teach physics and those who teach religion or social studies. Such teachers may be barred if they express their feelings at school, such as by kissing their partner in public or wearing a pink triangle". (Martin Moerings - "Socio-legal Control of Homosexuality")
Additional information on the Dutch constitution and on the General Equal Treatment Act can be found at the web site of COC.
"Roman Catholic bishop under investigation for anti-gay discrimination
Bishop Eijk, the new bishop of the Dutch province of Groningen, is under investigation for alleged anti-gay discrimination. The bishop, who was just recently appointed, made several anti-gay comments while teaching at the catholic seminary Rolduc.Even though The Netherlands do honor freedom of religion and freedom of speech, laws protecting its citizens from discrimination are considered to overrule the right to freedom of expression, religious or otherwise. The bishop is at risk of being prosecuted for his remarks. Some of the things bishop Eijk taught at the seminary included the following: Eijk taught his pupils, who are future priests, that homosexuals should be refered to a psychologist, to get treated for their "neurotic development disorder". Eijk also taught that homosexuals are not capable of the same commitment as two people who are married, and therefore are unable to engage in a loving relationship. He claims that homosexual relationships amount to no more than mutual masturbation. According to the bishop, affirming homosexuals in their sexuality would only result in their fixation on their neurotic behavior, which would be a grave mistake." (Gart Zeebregts Mon 30-Aug-99)
Anti-vilification laws and cases:
These laws exist - see under "anti-discrimination laws" above. |
4. Employment
Employment protection law and cases:
See above under anti-discrimination laws
Access to military:
Homosexuals have had access to the Armed Forces since 1974 (IOC).
"Dutch laws permit members of the armed services to engage in consensual homosexual relationships when off duty and away for military premises, be it with a civilian or a member of the armed services of the same or another rank." (Commander A. Veentjer, Assistant Naval and Air Attache, Royal Netherlands Embassy, London - 18 June 1985 -- quoted in Memorandum from the Campaign for Homosexual Equality to the UK Parliamentary Select Committee on the Armed Forces Bill, January 1986).
See "Ministry of Defense Report - ARMY: GAYS MORE ACCEPTED" |
5. Partnership Recognition (other than parenting)
"Since 1 January 1998, same-sex couples have been able to legally register their partnership (under the Partner Registration Act). Registered Partner(ship) is a new civil status equal to spouse/marriage. Contrary to popular belief, lesbian and gay couples are not legally allowed to marry in the Netherlands. Some churches will however marry homosexual couples.
The Partner Registration Act encompasses all the rights and duties of marriage, with one striking exception: parenthood. Consequently, registered couples are not able to adopt children...
Who can register a partnership in the Netherlands? Straight couples, plus lesbian and gay couples, are allowed to register their partnerships. However, only Dutch citizens and individuals with the legal right to stay in the Netherlands are allowed to register. These criteria do not exist for marriage. [but see below]
The legal consequences of partnership registration are similar to marriage. This means, for example, that the registered partners have a duty to maintain each other and the duty to live together. After "divorce" one of the partners can ask for alimony. Partnership differs from legal marriage in that registered partners can dissolve their partnership by agreement, without going to court."
(Astrid Mattijssen and Mirjam Turksma in "Equality for Lesbians and Gay Men")
For the official government brochure describing Registered Partnership law, click here
Restrictions on registered partnership with a foreign partner to be lifted
"Under the present law it is somewhat easier to marry a foreign partner than to register a partnership with a foreigner. For partnership registration both partners need to have either Dutch nationality or a 'valid residence entitlement'. For marriage it is enough that only one of the two partners is a Dutch national or a legal resident. In a letter to Parliament of 2 November 1998 the State Secretary announced a Bill which would make the condition that now applies to marriage equally applicable to partnership registration." (Kees Waaldijk 1 Jan 1999)
" 'Having a valid residence entitlement' has been interpreted in parliament and in practice as excluding tourists and asylum seekers, and also as excluding people who are entitled to residence here but who do not live here." (Kees Waaldijk 3 June 99)
Marriage and adoption
"In August 1996, at the request of a majority in Parliament, the government set up a state commission to investigate the legal implications of allowing civil marriage for same-sex couples. In October 1997 the commission presented its report "Opening civil marriage to same-sex couples". Among other things, the commission was in favour of making it possible for lesbian and gay couples to adopt, and a solid majority (5 out of 8 members) recommended civil marriage provisions for lesbian and gay couples.
On 6 February 1998, the government gave its verdict on the report. It backed the granting of adoption rights for lesbian and gay couples, with adoption being confined to Dutch children. Lesbian and gay couples would always have to apply to a judge in adoption cases, as straight couples and single people currently have to. This step forward is a recognition of lesbians and gays who raise children of their own and will give these children a second legal parent.
The government also plans to legislate to have shared parental authority begin automatically at the birth of a child within a registered partnership. Currently, parents have to ask a court to grant shared parental authority (see above). The steps backed by the government will take at least four years or more to translate into action, because Parliament must agree on the proposals."
(Astrid Mattijssen and Mirjam Turksma in "Equality for Lesbians and Gay Men")
Dutch Govt. OKs Marriage: " "Civil marriage will be made available to people of the same sex," said a statement issued by the Netherlands’ cabinet December 11, according to a Reuters report. Although the Parliament will have to give its approval, it’s been ready to do so for months, while the government has cautiously applied the brakes." (NewsPlanet December 11, 1998)
For a regular updates by Kees Waaldijk (University of Leiden) of the latest position on Dutch marriage, see the COC website. The legislation will take at least a year to process through the Dutch parliament. This page also includes documentation of all the developments in recent years on marriage/partnership. The COC website also provides statistics on the take up of partnerships.
July 1999: The government published one Bill to open civil marriage to same-sex partners, and a second one to open adoption to same-sex partners. Click here for summary translations of these Bills.
As regards civil marriage, at least one partner would have to be Dutch.
See below for adoption
Immigration rights:
The foreign partner of a Dutch National, or of an EU citizen resident in the Netherlands, or of a foreign national granted refugee status in the Netherlands, may settle in the Netherlands. Details of the conditions can be found at web site of COC.
Bi-national couples in a Registered Partnership enjoy the same treatment as opposite-sex married couples, where one is a Dutch national.
Inheritance laws:
On the death of one of the registered partners, the entire estate can accrue to the other partner without the need for a will, except where the dying partner has a child. The rules on inheritance tax are also the same as for married couples. Inheritance tax is the tax paid by a person on inherited assets. (From the official government brochure describing Registered Partnership law, with corrections by Kees Waaldijk)
Unregistered partners who have made a will, and have lived together for more than five years, are subject to the same inheritance tax as married or registered partners. (Kees Waaldijk - 14 April 1999)
Domestic partnership employment benefits:
"Everyone who participates in a pension scheme builds up rights to old-age and surviving dependant’s pension, the rights built up during the registered partnership must be divided if the partners separate. Here again, however, the partners can make different arrangements. The surviving dependant’s pension goes to the longest surviving partner." (From the official government brochure describing Registered Partnership law).
Most pension schemes in the Netherlands have for some years now provided a surviving partner's pension in the case of unmarried or unregistered cohabitatees (whatever the sex of the cohabitees). (Kees Waaldijk - 14 April 1999)
Social welfare:
Social security regulations are the same for registered partners as for married couples. (From the official government brochure describing Registered Partnership law). And they are virtually the same for unregistered /unmarried cohabitees as for married/registered partners (Kees Waaldijk - 14 April 1999)
Succession rights in housing:
Married, registered and unregistered/unmarried cohabitees all have the right to succeed to the lease of their deceased partner (Kees Waaldijk - 14 April 1999)
Other areas of the law in which Domestic Partnerships recognised:
Tax regulations are the same for registered partners as for married couples. (From the official government brochure describing Registered Partnership law) |
6. Parenting
Adoption and fostering:
"Since 1 April 1998, adoption has been open only to straight couples and single people. This means that lesbian or gay couples still cannot adopt children, even their own. At present the female partner of a mother cannot acquire legal parenthood over a child that they are raising together. This means that the child cannot be direct heir to the social mother, nor can the child acquire the social mother’s nationality. A child raised in a lesbian or gay family will not have a second legal parent or a second legal family." (Astrid Mattijssen and Mirjam Turksma in "Equality for Lesbians and Gay Men")
However, the Dutch government now plans to give adoption rights to lesbian and gay couples:
14 November 1998: "The Dutch Cabinet has approved a plan to let homosexuals adopt children, accelerating a push to expand gay rights in the country in time for the new millennium.The legislation, approved late Friday by top ministers of Prime Minister Wim Kok’s coalition government, would restrict adoptions to Dutch children. It will go before parliament, probably early next year, in a drive to have it become law by Jan. 1, 2000.
Under the proposal, gays and lesbians would not be allowed to adopt children from abroad out of respect for other countries’ laws, and out of concern that international adoption agencies would stop approving adoptions to all Dutch couples, heterosexuals included. The plan would limit the right to adopt to homosexual couples who have lived together for at least three years and who have cared for the child for a full year. It would not require a couple to marry or legally register their partnership.Prospective gay parents would have to demonstrate in court that the child they wish to adopt would be better off with them, Kok said. (Associated Press - By WILLIAM J. KOLE) For the full text of this article, see the COC Web Site
25.06.99: Government Press Release: Bills for same-sex marriages and adoption by same-sex
couples laid before Lower House
July 1999: the Dutch government publishes bill (click here for summary translation) to enable lesbian and gay couples to adopt.
The following factors are worth noting: the bill: 1): excludes intercountry adoptions; 2) adoptors (either single- or dual-parent(s)) must be Dutch citizens; 3) co-habitation of bioparent/partner for 1 year prior to the submission adoption request papers, with continuous care of the adoptee provided by both for the same period; 4) single parent adoption waiting period is 3 years, with continuous care of the adoptee provided for the same period; 5) adoption conditional "if it is also certain that the child has nothing to expect anymore from its parent or parents"
Parenting rights for non-biological partner
"Since 1 January 1998, lesbian or gay parents have been able to share custody with their same sex partners. Before then, shared parental authority was impossible for same-sex couples. Under the Law of Succession, the child under shared parental authority is seen as a legal child of the co-parent, giving him or her maintenance obligations for the child, and legal authority. The parents can also ask to change the name of the child.
To achieve this, the legal mother or father and his or her partner have to ask a judge to grant shared parental authority. This Act has already been criticised by the lesbian and gay movement and the women’s movement, as it still does not allow the co-mother or co-father to be a full legal parent.This will be an obstacle to the child as well as for the social (not fully legal) parent with regard to inheritance rights and the right to shared nationality."
(Astrid Mattijssen and Mirjam Turksma in "Equality for Lesbians and Gay Men")
Access to reproductive technologies:
"The rise in the number of lesbian and gay parents can be partly explained by the fact that opportunities for artificial insemination and known-donor insemination have become more widely known. Despite legal prohibitions, there are still denominational hospitals that deny lesbians artificial insemination. Although some hospitals refuse insemination to lesbians or single parents, there are enough hospitals that do offer the possibility."
(Astrid Mattijssen and Mirjam Turksma in "Equality for Lesbians and Gay Men") |
7. Asylum
Under Dutch law homosexuals can be recognised as refugees on "urgent humanitarian" grounds. (Astrid Mattijssen and Mirjam Turksma in "Equality for Lesbians and Gay Men")
Asylum has been granted in a number of cases (Kees Waaldijk - 14 April 1999)
For an account of the difficulties of gaining asylum even in the Netherlands, see "Homosexual Imam Prays For Tolerance"
Embassies
# Belgium, Van Houten Industriepark 25, Weesp, 0249 477333
# Brasil, Reimersbeek 2, 3015611
# United Kingdom, Koningslaan 44, 6764343
# Danmark, Radarweg 503, 6829991
# Germany, De Lairessestraat 172, 6736245
# France, Vijzelgracht 2, 5306969
# Norway, Keizersgracht 534, 6242331
# Suriname, De Cuserstraat 11, 6426137
# Italy, Herengracht 581, 6240043
# Equador, Kon. Wilheminaplein 2, 4272001
# Colombia, Oranje Nassaulaan 55, 3050111
# Chili, Stadhouderskade 2, 6120086
# Austria, Vijzelgracht 50, 3831300
# Grenada, J. Luijkenstraat 5, 6757774
# Còte d'Ivoire, Amsteldijk 166, 6612444
# Jamaica, Herengracht 316, 6267762
# Japan, Vijzelgracht 50, 6916921
# Luxemburg, Reimersbeek 2, 3015622
# Malawi, Velasquezstraat 11, 6798914
# Morocco, Vondelstraat 65-67, 6181616
# Mexico, Reimersbeek 2, 3015545
# Monaco, 2e Weteringsplantsoen 21, 6245250
# Panama, Eisdenstraat 10, 6697621
# Peru, Weterinschans 100 - 102, 6228580
# Sao TomÈ et Principe, Keizersgracht 448 bel, 6391756
# Senegal, Keizersgracht 534, 6251255
# Spain, Frederiksplein 34, 6203811
# Thailand, Emmastraat 40, 6799916
# Togo, Amsteldijk 319, 6445790
# United States, Museumplein 19, 5755309
# Iceland, Strawinskylaan 303, 4313114
# Switzerland, Herman Heijermansweg 11 hs, 6644231 |
8. Transgender Rights
| Dutch legislation recognizes gender reassignment on civil status documents (Law of 14 April 1985) ("Breaking new ground in international law protecting transsexual rights": Rights International’s amicus curiae brief: in X., Y. and Z. v. United Kingdom) |
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