Does it make sense to include sexual orientation and disability in section 1 of the constitution?

The times are changing. In the major revision of the constitution from 1983, it was decided not to explicitly include ‘homophilia’ and ‘disability’ as prohibited grounds of discrimination in Article 1. The rationale: Because of a disability, an extra effort is required to get someone to participate. Is positive discrimination still possible? Including homosexuality, according to the cabinet at the time, would not fit with the “current beliefs”.

“It shows once again that it was not very long ago that it was not obvious that LGB were equal to heterosexuals,” says Alexander Hammelburg, who as a member of parliament for D66 will defend a constitutional amendment in the Senate on Tuesday. “The same applies to people with disabilities when you see how difficult it is to make sure that a road is built with them in mind.” The constitutional amendment means that ‘sexual orientation’ and ‘disability’ are included in § 1 of the constitution.

If the Senate agrees, it will mark the end of a policy debate that has lasted years, even decades. D66, GroenLinks and PvdA put forward the bill in 2010. In 2001, a proposal to add disability was passed.

Article 1 expresses the principle of equality: “Everyone residing in the Netherlands shall be treated equally under equal conditions.” Five grounds for non-discrimination are then mentioned: religion, belief, political opinion, race and gender, but also: ‘regardless of any ground’. Why should “sexual orientation” and “disability” be included? Is this change in the law symbolic?

“At first glance, you would think so,” says Ashley Terlouw, professor of legal sociology at Radboud University. “But if a ground is expressly included in the constitution, then in my view it clearly gives the government an obligation to do something about discrimination on that ground.”

Legally, the inclusion of the grounds has little effect. Judges cannot test laws against the constitution – as stated in section 120 of the constitution. This makes the Netherlands an exception worldwide.

The constitution is a task for the government, explains Terlouw. Discrimination between citizens, such as between employer and employee, is regulated in subordinate legislation. For example, the General Equality Act (Awgb) was introduced in 1994, where sexual orientation is mentioned. In 2003, the Disability or Chronic Illness Equal Treatment Act was added.

You don’t know if gay couples will still be allowed to marry in fifty or a hundred years

Philip Tysma COC

Nevertheless, Terlouw is in favor of the constitutional amendment because discrimination on the basis of sexual preference or disability “is not an overtly protected good at all”: “You see in other countries, such as Poland and Hungary, how things go wrong with that protection.” Poland banned adoption of gay couples, Hungary banned the “promotion” of homosexuality and sex reassignment surgeries.

“You don’t know if, if the political winds were to turn unexpectedly, gay couples would still be allowed to raise children or get married fifty or a hundred years from now,” says Philip Tijsma of the LGBTI interest group COC.

It gives a constitution “strong protection” against, Terlouw believes. It is much more difficult to change than an ordinary law. There must first be a majority in the House of Representatives and the Senate, then elections, and then both houses must agree again, but this time by two-thirds. 50 votes are therefore needed on Tuesday. At first reading, that number was amply achieved, only SGP, PVV and Fraktion-Van Pareren voted against. SGP and PVV want a “sober” constitution.

Nevertheless, it will be tense at the vote on Tuesday evening: the VVD is in doubt, it turned out on Tuesday morning. Are other groups not explicitly mentioned not disadvantaged by this, Senator Caspar van den Berg wondered.

Also read this interview with minister Hanke Bruins Slot: “So you also have to uphold a constitution”

The entire list is gone

Including a plot of land gives it “extra status”, says Terlouw. “Now it seems that race and gender are more important than disability or sexual orientation.” This is precisely why Janneke Gerards, professor of fundamental rights at Utrecht University, believes that it is “more powerful” to “remove the entire list”. “If people attach some meaning to the fact that some countries are in the constitution and others are not, it can become distorted over time. An impression can then arise that it is only a matter of discrimination if it has been recognized so widely that it is really possible to get the basis in the constitution.” And the more reasons you add, she says, the faster that perception can emerge.

According to her, this discussion “has a counterproductive effect: “You want the constitution to be more up-to-date and more in line with the views of certain groups, and at the same time you don’t do that, because there are always other reasons that are not part of this.” 50Plus also wanted to include ‘age’. In 2019, the Awgb clarified that ‘gender’ also includes ‘sexual characteristics, gender identity and gender expression’.

The discussion on constitutional revision is once again topical: this year the government sent a ‘cover letter’ to the House of Representatives to discuss this further. The preference is not for a constitutional court, but for the ability of all judges to review laws constitutionally.

Professor Gerards doubts whether it will make a big difference in practice. Judges can already test laws against international treaties, which often contain many more grounds for non-discrimination, such as “language” or “assets”.

If the Netherlands were to slide in the direction of Poland and Hungary, Gerards does not believe that a certain wording in the constitution would help to counter the “cunning undermining that you see there. Judges are gradually being replaced, media are being eroded.” A constitution is ultimately “words on paper,” says Gerards. “It’s about the constitutional culture.”

Until the rule of law is undermined, express non-discrimination grounds in the constitution are really important, replies MP Hammelburg. Community groups are better able to point out discrimination. And the Senate and the House of Representatives must ensure that laws do not conflict with the Constitution.

Talking article

Ingrid Leijten, professor of Dutch and European constitutional law, believes that removing the list of grounds entirely is “too abstract”. “I find it valuable that things are mentioned explicitly. That we have a certain consensus on that.”

Article 1 is a ‘speaking’ article, says Leijten. “If you ask people: what does our constitution say? They are the first to say: discrimination is prohibited.” At the same time, there is sometimes a wrong image of the prohibition against discrimination, warns Leijten: This does not mean that every form of discrimination is prohibited, but that the government must always be able to justify it.

Yes, the change in the law also has a symbolic side, says Leijten. “But is it bad? Don’t we just want to work on it?” The role of the constitution has always been very small, she says. That changed during the pandemic when the constitution was screened in connection with corona measures such as the corona admission ticket. “When it comes down to it, we want to do something about it. There is momentum to give the constitution more meaning.”

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