| Click here for a summary of the Netherland’s review at the first cycle and/or the third cycle. |
13th UPR session
Date of review: 31 May 2012
Date of report adoption: 21 September 2012
Working Group report: A/HRC/21/15
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SUMMARY SOGIESC issues during the Netherlands’s 2nd UPR review |
I. Key issues/recommendations identified by NGOs
- Include sexual orientation and gender identity as grounds for non-discrimination in the Constitution;
- Improve the draft law on gender recognition, fully respecting the self defined identity of transgender persons;
- Combat discrimination against transgender persons in the labour market;
- Apply the Yogyakarta Principles as a guide to policy making.
II. Excerpts from input reports
National report
IV. Achievements and best practices
21. For the country of the Netherlands, ‘trendsetter agreements’ have been concluded between the central government and municipalities to improve the safety of gay, lesbian and transgender people, to help them stand up for their rights, and to promote the social acceptance of homosexuality. They encourage local authorities to place this theme on their agendas. For the period 2011–2014, municipalities are focusing on improving safety in the streets and in neighbourhoods.
VII. Non-discrimination
41. Everyone in the Netherlands is protected by law from discrimination. The ban on discrimination is enshrined in article 1 of the Dutch Constitution. The government rejects every form of discrimination, on the basis of race, religion, belief, sex, sexual orientation, or on any other grounds whatsoever. Discrimination is at odds with the notion of citizenship: it creates obstacles to people’s involvement in society, and impedes them from taking part in, and investing in, their community.
A. Non-discrimination (including racial discrimination)
Criminal Code on incitement to hatred
52. Articles 137c to 137e of the Dutch Criminal Code deal with a wide range of criminal offences involving incitement to hatred of, and publicly expressing views that are insulting to, a group of individuals on account of their race, religion or belief, sexual orientation, or disability. These provisions enable the government to actively pursue obligations under the leading international conventions in the fields of anti-discrimination and anti-racism, within the existing international framework for the protection of civil and political rights. The Kingdom of the Netherlands believes that it is not necessary to implement additional measures.
B. Gender, gender identity, and sexual orientation
55. The government sent a letter outlining its equal opportunities policy for the period 2011-2015 to the House of Representatives, on the basis of a number of lines of action. In the context of the low literacy action plan, extra attention will be paid to tackling poor literacy among women. The Dutch government considers women’s independence and more specifically the dependency of many of the young women who come to the Netherlands in the context of family formation and family reunification an extremely important issue . A lack of language skills and education, combined with ignorance about Dutch institutions, poses risks for these immigrants in terms of equal opportunities and their wider prospects for the future. In this context, the civic integration examination abroad and the new admission requirements for family migrants will help to promote the self-reliance of this group.
56. In the area of gender identity and sexual orientation, the Netherlands’ approach focuses on tackling discrimination, promoting equal treatment, and standing up for the human rights of the vulnerable group of homosexual and transgender people. Since 2008, the Netherlands has organised an annual ‘National Coming Out Day’ on 11 October. To gain a better picture of the frequently vulnerable position of transgender people, the Netherlands has asked its Institute for Social Research to conduct a study into the specific problems that exist in the areas of employment and health care. Draft legislation to provide for the recognition of gender identity is currently in preparation, now that a preliminary round of field consultations on the internet has been completed.
57. The attainment targets for education will be clarified. Sexuality and sexual diversity will be included in the attainment targets for primary (no. 38), secondary (no. 43) and special education (no. 53).
58. The government applies the principles of gender mainstreaming. This means that in formulating policy, possible differences in impact between men and women are taken into account. The Netherlands incorporates gender considerations into policy by ensuring that the implications of line ministries’ policy for women are as transparent and verifiable as possible and by increasing expertise on equal opportunities in general and gender equality in particular.
Compilation of UN information
III. Implementation of international human rights obligations
A. Equality and non-discrimination
16. CEDAW remained concerned about the persistence of gender-role stereotypes, in particular about migrant women and men.
Summary of stakeholders’ information
II. Information provided by other accredited national human rights institutions and other stakeholders
C. Implementation of international human rights obligations
1. Equality and non-discrimination
23. Despite the low number of complaints related to sexual orientation or gender identity received by anti-discrimination bodies, CoE-Commissioner observed a number of worrying trends: social acceptance and safety of Lesbian, Gay, Bisexual and Transgender (LGBT) persons are under pressure and the number of LGBT persons being insulted, discriminated against or physically assaulted is reportedly growing.
24. JS1 recommended that the Netherlands include sexual orientation as an explicit ground for non-discrimination in the Constitution. JS1 further recommended that gender identity and gender expression are included as explicit grounds of discrimination in the Constitution and in GETA. JS1 and CoE-Commissioner recommended that the Netherlands abolish the “sole fact construction” according to which religious schools may refuse and/or expel homosexual teachers and students.
4. Right to privacy, marriage and family life
36. JS4 reported that many transgender persons had identity papers which did not match their lived gender as a result of the existing legal requirements for gender recognition. JS1 recommended that the Netherlands abolish unnecessary conditions of sex reassignment including hormonal treatment, surgery and irreversible infertility prior to a change in gender registration. Noting the proposed new draft law on gender recognition, JS4 reported about several shortcomings in the draft law, including a new requirement of an expert’s affirmation for legal gender recognition. JS4 recommended that the Netherlands improve the draft law on gender recognition and also ensure that health insurance covers all medical costs of transition.
6. Right to work and to just and favourable conditions of work
40. In JS5, the Equal Treatment Commission stated that the Netherlands had not implemented measures to address discrimination in the labour market. It recommended that the Government publicly and repeatedly voice its concern and disapproval regarding race discrimination in the labour market, make employers aware of their non-neutral selection behaviour and address their responsibility to select in an ethnically neutral manner. JS1 and JS4 also referred to discrimination against transgender people in the labour market.
8. Right to health
46. JS1 reported that the situation regarding health care for transgender people was troublesome. A waiting period of one year for access to transgender specific healthcare at the Amsterdam gender dysphoria care team is not exceptional. For transgender people that choose to undergo medical treatment, several medically necessary options are not available. Dutch treatment of transgender people is still based on a pathologising view on transgender. It recommended paying more attention to the health needs of transgender people and the depathologization of transgender identities.
9. Right to education
50. JS4 indicated that the Government agreed to include education on sexuality and sexual diversity in primary and secondary school in November 2011. JS1 recommended that the Netherlands include education on LGBT persons in schools.
III. References to SOGI during the Working Group review
I. Summary of the proceedings of the review process
A. Presentation by the State under review
7. In addition, Minister Spies explained that in April 2012, the coalition government of the Netherlands resigned. Therefore, the current government, although officially not in function, will continue its work on the implementation of the main policy measures to endorse full respect of human rights. Inter alia, guaranteeing the equality of every citizen, promoting integration, fighting domestic violence by punishing perpetrators and protecting victims, combating the trafficking of human beings, protecting refugees and asylum seekers, promoting social acceptance of LGBT-people in society, and human rights education in the Dutch school.
B. Interactive dialogue and responses by the State under review
22. Estonia congratulated the Netherlands on the inclusion of civil society and other stakeholders in the preparation of its UPR report. Estonia commended the creation of a Children’s Ombudsman, its policies on LGBT rights, the protection of privacy and individual data and its role as a driver in the Internet freedom agenda. Estonia encouraged the Netherlands to continue its combat on incitement against minority groups. Estonia made recommendations.
43. Regarding non-discrimination, its ban is enshrined in article 1 of the Constitution. The Netherlands is highly committed to combat discrimination and racism. It rejects any form of discrimination, be it on the grounds of race, descent, religion, belief, gender, sexual orientation, handicap or any other ground. Discrimination is at odds with citizenship and impedes them from taking part in their community. The Minister stated the Dutch government does not pursue specific policies targeting specific types of discrimination. She referred to bodies to prevent and combat discrimination, like the antidiscrimination bureaus, the Equal Treatment Commission and the police, which are accessible to everyone. In addition, in 2010 a National Action Plan to Combat Discrimination was enacted. In 2011, further measures were put in place to combat discrimination, including school programmes.
80. Azerbaijan asked about the efforts undertaken by the Dutch Government to establish national human rights institutions compliant with the Paris Principles. Azerbaijan remained concerned about the persistence of gender-role stereotypes, in particular about migrant women and men. Furthermore, Azerbaijan welcomed the introduction of compulsory education and measures taken to give all children access to school and decrease dropout rates. Azerbaijan made recommendations.
84. Brazil welcomed the progress made concerning LGTB rights, especially promoting the safety of LGTB persons, and also commended the Netherlands for their measures regarding women’s rights. Furthermore, Brazil asked the Dutch delegation about statistics on the number of asylum seekers who had effectively been granted refugee status in the country in the last 5 years. Brazil made recommendations.
IV. Conclusions and/or recommendations
The following recommendations did not enjoy the support of the Netherlands:
98.36. Develop a system of recording official statistical data on the most widespread crimes and offences committed on the basis of discrimination taking into account the legal obligations of the Netherlands in registering such crimes (Uzbekistan);
Recommendation is in line with existing policy (A/HRC/21/15/add.1).
98.51. Develop a national action plan to combat discrimination in consultation with civil society (Norway);
Everyone in the Netherlands is protected by law from discrimination. In case of an infringement, access to justice is provided. In addition active policies to prevent discrimination are implemented. See also the National Report VII.A.42 (A/HRC/21/15/add.1).
The Netherlands gave a general response to the following recommendations:
98.96. Intensify its efforts to ensure that education, health, employment and social protection programmes are inclusive and not discriminatory. Apply also these measures to all the countries and territories that form the kingdom of the Netherlands (Nicaragua);
Recommendation is in line with existing policy (A/HRC/21/15/add.1).
V. Adoption of the Report
The draft report of the Working Group was adopted at the 21st session of the Human Rights Council in September 2012.
Statements by States and other stakeholders
COC Netherlands, Transgender Network Netherlands, ILGA Europe
Delivered by Joyce Hamilton
The Netherlands has come a long way in improving human rights of lesbian, gay, bisexual and transgender people. We commend the government on recent decisions to make comprehensive sexuality education compulsory and to simplify legal sex reassignment procedure, abolishing the sterilization requirement for transgender people.
However, legal gaps as well as social challenges towards achieving full equality of LGBT people require more and continuous attention by the Dutch government.
We recommend the Dutch government to include sexual orientation and gender identity and gender expression as an explicit ground for non-discrimination in article 1 of the Dutch Constitution. We also recommend to include gender identity and gender expression as an explicit ground for non- discrimination in the existing General Law on Equal Treatment.
The situation regarding health care for transgender people in the Netherlands is troublesome: many experience discrimination and non-recognition in health care. Additionally, long waiting lists limiting access to specific transgender health care have a negative impact on their well-being. We encourage that more research is done and attention be provided for the health needs of transgender people.
The present Dutch Equal Treatment Law provides religious schools the right to refuse or expel homosexual teachers and students that are open about their sexual orientation. The Council of Europe called for the abolishment of the paragraphs, stating that a publicly financed education system should be accessible by anyone without discrimination. We recommend that the government repeal provisions allowing expulsion or dismissal of students and staff for reasons related to their sexual orientation.
Moreover, the human rights situation of LGBT asylum seekers and refugees remains problematic. While Dutch government has always shown a deep commitment to non-discrimination, asylum officials are still often relying on stereotypes. There are cases of LGBT asylum seekers being denied asylum under the assumption that they can and should conceal their identities to avoid persecution in their countries of origin. Additionally, many LGBT asylum seekers face verbal and physical abuse in detention centres and authorities have not always responded adequately.
We call on the Dutch government to provide safe shelter for LGBT asylum seekers and to swiftly implement policy that guarantees non-discrimination in the asylum procedure.
VI. Further information
UPR Documentation
For first cycle reports of Netherlands, please see here
National report 1 : A | C | E | F | R | S
Compilation of UN information 2 : A | C | E | F | R | S
Summary of stakeholders’ information 3 : A | C | E | F | R | S
Corrigendum 1 : A | C | E | F | R | S
Questions submitted in advance: E
Addendum 1: E
Addendum 2: E
Outcome of the review
Draft report of the Working group: A | C | E | F | R | S
Addendum 1: E