Sexual Orientation Law
Information by Dr. Kees Waaldijk LL.M. about research and developments in international, European, national and comparative sexual orientation law.
- News 2010 & 2011
- News 2007 & 2008
- News 2005 & 2006
- News 2003 & 2004
- News 2001 & 2002
- Other websites with news about sexual orientation law
- European Group of Experts on Combating Sexual Orientation Discrimination
- Publications by Kees Waaldijk
New chair at Leiden Law School:
Comparative Sexual Orientation Law
Leiden University has appointed Kees Waaldijk to its new chair in Comparative Sexual Orientation Law. This endowed chair, unique in Europe, has been made possible by private gifts to the Leiden University Fund. The chair will be based at the Leiden Law School’s Grotius Centre for International Legal Studies, at the Hague campus of Leiden University.
Kees Waaldijk will start there in May. As of the coming academic year he will be offering a new optional course: Comparative Sexual Orientation Law, for students from Leiden and also from elsewhere. One of his current research projects assesses in which situations European countries are recognising a foreign marriage or partnership consisting of two women or two men. In May the Max Planck Encyclopedia of Public Internationals Law will publish his latest analysis of the protection that international law is providing to same-sex couples.
Junior researchers in LGBT law are forming PhD Network
The number of PhD candidates and other junior researchers working on legal aspects of sexual orientation or gender identity is growing. A few of them thought it would be good to start a network of junior researchers in LGBT law. Such a network could become a forum to exchange ideas, share information and build a broader and deeper knowledge of the field of sexual orientation, gender identity and the law. Therefore the group will be open to PhD candidates, PostDocs and other young researchers working in this field, whether in family law, social security law, labour law, constitutional law, international law or any other relevant area of law, or in sociology of law, legal history, law & economics, etc.
Would you be interested in joining such a network?
If so, please contact Jose Maria Lorenzo Villaverde, who is doing PhD research at the Faculty of Law of the University of Copenhagen, on same-sex marriage and registered partnership in Spain and Denmark. He can be contacted at: email@example.com.
Chapters from book by Kees Waaldijk & Matteo Bonini-Baraldi now online
The introductory and concluding chapters, plus the bibliography, of the book Sexual Orientation Discrimination in the European Union: National Laws and the Employment Equality Directive are now online.
The book, published in 2006 by TMC Asser Press in The Hague, continues to be available via Springer. The book is based on the report Combating Sexual Orientation Discrimination in Employment, which is also available in French. The book has been reviewed by M Jefferson in The 2007 British Year Book of International Law (Oxford: Clarendon 2008, p. 506-508).
Summer School on International and Comparative Sexual Orientation Law
It is not yet too late to register for the Summer School on International and Comparative Sexual Orientation Law, that Whittier Law School is organising together with the Williams Institute (both based in Los Angeles). Previous editions of this successful and unique program took place in Amsterdam. This year the program will take place in Barcelonafrom 1 to 29 July 2011.
Participants in this program can choose up to six courses. The courses on offer include: Legal Recognition of Same-Sex Relationships Around the World (by Brad Sears), Spanish Law & the LGBT Community (by Cristina Gonzalez), Transgender Law (by Shannon Minter), Social Science and Public Policy on LGBT issues (by Lee Badgett) and Same-Sex Privacy, Partnership and Parenting in International and European Law (by Kees Waaldijk).
To make the program even more international, a limited number of places is being made available for non-US students at a sharply reduced fee of USD 1,000 (on condition that they will make a presentation during the program about developments in their own jurisdiction). Admission is at the discretion of the organisers.
Please apply before 1 March. Applications received after this date (but before 15 April) will be considered only if space is available. Please note that there is limited program housing, and priority will be given to early applicants.
For more information, see www.law.whittier.edu/index/centers-programs/study-abroad/barcelona-spain.
Upcoming conferences (with some content) on sexual orientation law
2nd AsiaPacific Outgames Human Rights Conference, Wellington, 16-18 March 2011.
Legal Recognition of Same-Sex Relationships in Europe, Trier, 11-12 April 2011. Conference organised by ERA - Academy of European Law.
Equality and Justice - LGBTI Rights in the XXI Century, Florence, 12-13 May 2011.
International Day Against Homophobia Conference, Nottingham, 17 May 2011. Conference organised by the University of Nottingham, as part of the research project "Citizens in Diversity: A Four-Nation Study of Homophobia and Fundamental Rights".
Justice in the Balkans - Equality for Sexual Minorities, Belgrade, 27-30 May 2011. Information about this follow up to a similar conference in Monte Negro in 2009 will become available.
Company Pride Platform Conference, Amsterdam, 1 July 2011.
LGBT/Queer Studies: Toward Trans/national Scholarly and Activist Kinships, An International Conference, Madrid, 3-5 July 2011.
Naming and Framing: The Making of Sexual (In)Equality, Madrid, 6-9 July 2011. Conference of the International Association for the Study of Sexuality, Culture and Society (IASSCS). The 2011 Conference theme focuses on the multiple ways that equality and inequality are articulated through sexuality.
North American Outgames Human Rights Conference, Vancouver, 26-28 July 2011.
National LGBT Bar Association Career Fair and Conference (Lavender Law), Los Angeles, 8-10 September 2011.
European Geographies of Sexualities Conference, Brussels, 8-10 September 2011.
ILGA-Europe Annual Conference, Torino, 27-30 October 2011.
Mutual recognition of registered partnerships and same-sex marriages within the territory of the European Union: a restriction on the freedom of movement of EU citizens and members of their family? Strasbourg, 18-19 November 2011. Conference organised by the French organisation of LGBT professionals L'Autre Cercle.
And the biggest of them all: World Outgames Human Rights Conference, Antwerp, August 2013.
Legal recognition of same-sex partnerships
As regards the legal recognition of same-sex partnership I think the situation as of 1 January 2011 can be summarised as follows:
• Civil marriage has been opened up to same-sex couples in Argentina, Belgium, Canada, Iceland, Netherlands, Norway, Portugal, Spain, South Africa, Sweden, and in parts of Mexico and the United States of America. Legislation is pending or expected in Finland, Luxembourg, Nepal and Slovenia.
• In several other jurisdictions (including Israel, Mexico, the Caribbean parts of the Kingdom of the Netherlands, and parts of the United States of America) a same-sex marriage contracted outside theses jurisdictions would be recognised for at least some legal purposes. This is also the case in many of the countries that have introduced some form of registered partnership but have not opened up marriage. However, most of the latter countries would not recognise a foreign same-sex marriage as ‘marriage’ but only as registered partnership.
• A form of registered partnership for same-sex couples (and sometimes also for different-sex couples) carrying some, most or all legal consequences of marriage, has been introduced (under various names) in Andorra, Austria, Belgium, Czech Republic, Denmark, Ecuador, Finland, France, Germany, Greenland, Hungary, Ireland, Luxembourg, Netherlands, New Zealand, Slovenia, South Africa, Switzerland, United Kingdom, Uruguay, and in parts of Argentina, Australia, Brazil, Canada, Mexico, Spain, and the US. Legislation is pending or expected in Chile, Costa Rica and Liechtenstein. In Iceland, Norway and Sweden the possibility of partnership registration was also introduced, but later abolished when marriage was opened up to same-sex couples.
• Informal cohabitation of same-sex partners has been recognized—at least for some legal purposes—in most of the jurisdictions mentioned above, and also in several others, including Australia, Brazil, Colombia, Croatia, Israel, Poland, and parts of Italy and the US. has been recognised (at least for some legal purposes) in most of the jurisdictions mentioned above, and also in several other, including Austria, Brazil, Colombia, Croatia, Hungary, Israel, Portugal, and in parts of Australia, parts of Italy and parts of the United States of America.
Please correct me (at firstname.lastname@example.org ) if I am wrong or incomplete in summarising this constantly moving picture in this way! See also my article ‘Same-Sex Partnership – International Protection’ in the Max Planck Encyclopedia of Public International Law and my paper ‘Legal Recognition of Homosexual Orientation in the Countries of the World’.
FRA updates legal study on homophobia and transphobia in EU member states
In November 2010 the European Union Agency for Fundamental Rights published the important report . The previous version of this legal study was published in 2008, and in 2009 a parallel social study was published. The country thematic studies containing legal background information on which the 2010 update has drawn (one for each of the 27 member states), are now also online.
The 2010 thematic study on the Netherlands (by Kees Waaldijk, Rick Lawson & Nelleke Koffeman) provides among other things an overview of recent and proposed changes in Dutch law and policy on LGBT issues. It notes for example (in paragraph 40) that as of August 2009 discrimination (on grounds such as sex and sexual orientation) is also covered by the law on health and safety at work, which requires every employer to take measures to prevent (or if prevention is impossible, to reduce) ‘psycho-social work pressure’ and now includes direct and indirect discrimination in the definition of the latter term. The study also mentions (in paragraph 81) the 2009 law prescribing that every local authority must give its citizens access to a local or regional ‘anti-discrimination provision’. The law stipulates two tasks for each anti-discrimination provision: independent assistance to persons complaining about discrimination in the sense of several other laws, including the General Equal Treatment Act and the Penal Code, and the registration of all such complaints that they receive. All this is in addition to the role of the (national) Equal Treatment Commission.
Numbers of new marriages in the Netherlands
|Two women||Two men||Man + woman||Same-sex total||Grand total|
Source: Statistics Netherlands.
Numbers of partnership registrations in the Netherlands:
|Two women||Two men||Man + woman||Same-sex total||Grand total|
The fall of the number of same-sex partnership registrations in 2001 can be attributed to the opening up of marriage for same-sex couples on 1 April 2001. The numbers of partnership registrations from 2001 include couples who converted their marriage into a registered partnership (because they wanted to take advantage of the fact that it is easier and cheaper to dissolve a registered partnership than to dissolve a marriage; for the dissolution of a registered partnership the partners do not have to go to court). These conversions have become possible on 1 April 2001 but were abolished as of 1 March 2009.
If you leave out the registered partnerships that originated in such a conversion from marriage (and were probably soon after dissolved), the numbers are as follows:
|Two women||Two men||Man + woman||Same-sex total||Grand total|
Source: Statistics Netherlands.
The fourth conference of the International Lesbian and Gay Law Association (ILGLaw), "The Global Arc of Justice: Sexual Orientation Law Around the World," will take place 11-14March 2009, in West Hollywood and Los Angeles, California, U.S.A., where it will be co-sponsored by the Williams Institute on Sexual Orientation Law and Public Policy at UCLA. Please consider proposing a paper or panel presentation for this important conference on sexual orientation and gender identity law (before the deadline of 15 November 2008, see the call for papers, and do circulate it to others!). Registration information will be available soon at www.ilglaw.org. ILGLaw unites people around the world who are dedicated to the principle of equality under the law for lesbian, gay, bisexual, and transgender people. The ILGLaw Conference brings together attorneys, judges, academics, law students, policy makers and activists from around the globe to discuss developments in sexual orientation and gender law, and honors an individual with the Karl Heinrich Ulrichs award for an important contribution to the cause of legal equality for lesbian, gay, bisexual and transgender people. Earlier ILGLaw conferences took place in London (1999), Torino (2002) and Toronto (2005, see www.ilglaw.org).
The 13th World Conference of the International Society of Family Law will take place in Vienna, 16-20 September 2008. See www.univie.ac.at/isfl. The next World OutGames, again featuring sport, culture and an Internation conference on LGBT human rights, will be held in Copenhagen 25 July - 2 August 2009, www.copenhagen2009.org. For the call for proposals (deadline for proposals and outreach applications is 1 October 2008), see www.bdp.dk/proposals.htm.
Kees Waaldijk & Eric Fassin, Droit conjugal et unions de même sexe. Marriage, partenariat en concubinage dans neuf pays européens , préface de Marie Digoix et Patrick Festy, Paris: Presses Universitaires de France 2008 (serie "Les Notes" de la Mission de recherche Droit et Justice; isbn 978-2-13-056249-8; 64 p.; based on the 2005 report More or less together).
From 8 July to 5 August 2008, in Amsterdam, once again, the Summer Program on Sexual Orientation and the Law will be held. This summer school for law students from all over the world is organised by Whittier Law School in Los Angeles. See www.law.whittier.edu/centers/sa-netherlands.asp.
Advisory commission recommends allowing a woman to acknowledge the child of another woman
Although marriage and adoption have been opened up to same-sex couples in the Netherlands in April 2001, there have still been a few differences between the legal position of children of different-sex couples and the legal position of those of same-sex couples:
1. Legislation is already under way to abolish one of these differences: the prohibition of intercountry adoption by (married) same-sex couples.
2. On 31 October an ad hoc advisory commission of the Dutch government has recommended the abolition of another difference: If a child only has a legal mother, the law as it stands only allows a man (wether or not he is the biological father) to acknowledge the child as his own. The commission now recommends to also allow such an acknowledgement by another woman. This would make it quite easy for the lesbian partner of a mother to become the second legal parent of her child. Acknowledgement can be done before or after the birth of the child, and has a very simple procedure at the Civil Registry. It has the same legal effect as a second-parent-adoption. Unlike adoption, it does not involve the costs, time and hassle of having to go to court. Acknowledgement is not possible in situations where the child already has two legal parents.The commission does not propose to allow children to have more than two legal parents.
3. A third difference in the law as it stands, is that a child born to a woman who is married to another woman, does not automatically get that second woman as its second parent. In such a situation the second woman automatically only gets joint parental responsibility for the child, and the couple can choose to start an adoption procedure to make her a full legal parent. In a different-sex marriage the husband automatically becomes the legal father of the newborn child. The advisory commission mentioned above suggests that this difference could be abolished as well, but it does not recommend it.
It is not yet known whether the Dutch Government and/or Dutch Parliament will follow the recommendation of the commission.
Evaluation study on Dutch same-sex marriage and registered partnerhip
Researchers at the University of Utrecht (Katharina Boele-Woelki, Ian Curry-Sumner, Miranda Jansen, Wendy Schrama) have completed their evaluation study, commissioned by the Dutch government, of the Act introducing registered partnership (in force in the Netherlands since 1998) and the Act opening up marriage to same-sex couples (in force since 2001). There is an online summary in English of this study (third pdf document listed on the right).
At the International Conference on LGBT Human Rights (of the 1st World OutGames in Montreal in July 2006) the "Declaration of Montreal" was adopted, detailing the aims and concerns of the global fight for LGBT Human Rights. The text of the declaration can be found at www.declarationofmontreal.org. See also www.ilga-europe.org/europe/news/international_conference_on_lgbt_rights_montreal.
At the latter site you will find the text of the speeches delivered at the conference by Louise Arbour (UN High Commissioner for Human Rights), Vladimír Špidla (EU Commissioner for Employment, Social Affairs and Equal Opportunities) and Anastasia Crickley (representative of the OSCE).
Registered Partnership Law in Czech Republic (and elsewhere)
On 15th March 2006, the Chamber of Deputies (the Lower Chamber) of the Czech Parliament outvoted the presidential veto and adopted the Registered Partnership Bill. The Bill shall be enacted by its publication in the Collection of Law and will enter into effect three months thereafter. The first couples could therefore become registered partners sometime in late June / early July. Registration will only be possible for same-sex partners.
The list of legal consequences attached to a Czech registered partnership is long, but so is the list of legal consequences that will continue to be only available to married different-sex couples. Therefore I think that the Czech registered partnership can best be characterised as a "semi-marriage" (just like the "PaCS" in France, and the "cohabitation légale" in Belgium, for example). It does not look like a "quasi-marriage" (as can be found in the five Nordic countries, and in the Netherlands, for example). On this classification, see my article "Others may follow: the introduction of marriage, quasi-marriage, and semi-marriage for same-sex couples in European countries", in: 38 New England Law Review 2004, p. 569-589. Online available at: www.nesl.edu/lawrev/vol38/3/11-Waaldijk-PDF.pdf.
As far as Europe is concerned, the situation is now as follows:
National registered partnership laws are now in force in Denmark, Norway, Sweden, Iceland, Finland, Netherlands, Belgium, Luxembourg, France, Germany, Andorra, and the United Kingdom. National registered partnership laws have also been adopted in three other countries, and will soon enter into force in Slovenia (2006), Czech Republic (2006) and Switzerland (2007). Regional registered partnership laws are in force in parts of Spain and parts of Switzerland.
Same-sex couples can marry in the Netherlands, in Belgium and in Spain. Registered partnership (or even the opening up of marriage to same-sex couples) is being discussed in almost all other countries in Western and Central Europe, including Italy, Ireland, Portugal, Austria and Hungary.
Various laws in many European countries recognise the informal (non-registered) cohabitation of same-sex partners for certain purposes; this is also the case in some countries that have no laws on registered partnership (yet), such as Hungary, Austria, Portugal and Croatia.
The similarities and differences between marriage, registered partnership and/or informal cohabitation, and the levels of legal consequences attached to these forms of relationships, vary considerably from country to country (see the report More or less together).
Matteo Bonini Baraldi wrote Le nuove convivenze - tra discipline straniere e diritto interno, ISBN 88-217-2238-4, see http://ipshop.ipsoa.it/scheda.asp?ID=000053597.
Ian Curry-Sumner wrote All's well that ends registered? The Substantive and Private International Law Aspects of Non-Marital Registered Relationships in Europe, ISBN 90-5095-532-0, www.intersentia.be/zoekdetail.asp?pid=1251.
Mark Harper, Martin Downes, Katharine Landells & Gerald Wilson wrote Civil Partnership: The New Law (about the legislation in England and Wales), ISBN 0 85308 933 7, www.jordanpublishing.co.uk/Publications/catDetails.aspx?productID=65.
Anne Weyembergh and Sinziana Carstocea edited The gays' and lesbians' rights in an enlarged European Union, ISBN 2-8004-1367-0, www.editions-universite-bruxelles.be/ABWebBuilder.php?page=/catalogue.
Stefano Fabeni & Maria Gigliola Toniollo edited La discriminazione fondata sull?orientamento sessuale, ISBN 88-230-1029-2, www.ediesseonline.it/asp/libro.asp?id=245.
New study: More or less together.
Levels of legal consequences of marriage, cohabitation and registered partnership for different-sex and same-sex partners.
A comparative study of nine European countries
by Kees Waaldijk (Netherlands) in cooperation with John Asland (Norway), Søren Baatrup (Denmark), Daniel Borrillo (France), Hrefna Fridriksdóttir (Iceland), Rainer Hiltunen (Finland), Olivier De Schutter (Belgium), Dirk Siegfried (Germany) and Hans Ytterberg (Sweden), with a sociological epilogue by Eric Fassin
Published as: Documents de travail no. 125, Institut National des Etudes Démographiques (INED), Paris, 2005.
The individual chapters of the 200 page report are online available in PDF. See also http://www-same-sex.ined.fr/intro_pub.htm. A paper copy of the report can be requested from Marie Digoix (email@example.com).
Published on the website of the Commission of the European Communities:
Combating sexual orientation discrimination in employment:
legislation in fifteen EU member states
Report of the European Group of Experts on Combating Sexual Orientation Discrimination,
about the implementation up to April 2004 of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation
edited by Kees Waaldijk and Matteo Bonini-Baraldi with the cooperation of Alan Littler
The full text in English of this 660 page report is now available online. Most chapters are also available in French. For each chapter there is a summary, both in English and in French.
The report not only contains chapters on each of the fifteen countries that until 1 May 2004 formed the European Union, but also a chapter on European law (by Matteo Bonini), a detailed and critical Comparative analysis (by Kees Waaldijk), and a thematic study on Discriminatory partner benefits (by Alan Littler). The report focusses on the legislation that has been enacted or proposed in the fifteen member states to meet the European Community's requirement to prohibit sexual orientation discrimination in employment. The national, European and comparative chapters also sketch the general legal background with respect to sexual orientation discrimination in these fifteen countries, in the European Union and under the European Convention on Human Rights.
This report was prepared by an independent group of experts (EGESO) that was established and funded (2002-2004) by the European Commission under the framework of the European Community's Action Programme to Combat Discrimination (see http://europa.eu.int/comm/employment_social/fundamental_rights/index_en.htm).
For more information about the report and about the group of legal experts that wrote it, see below. The concluding chapter 20 can be read as a summary of the whole report; its conclusions indicate to what degree the various member states have fulfilled their obligations.
Three countries have recently moved closer to the nationwide introduction of same-sex marriage (without actually introducing it, as yet):
The ruling of the Canadian Supreme Court about draft legislation providing for same-sex marriage throughout Canada can be found at: www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc079.wpd.html in most but not all parts of Canada marriage is already available to same-sex couples).
A judgment of the Supreme Court of Appeal of South Africa, of 30 November 2004 (see http://wwwserver.law.wits.ac.za/sca/files/2322003/2322003.pdf), paving the way for same-sex marriage, is subject to an appeal to the Constitutional court.
A draft-bill on same-sex marriage has been approved by the Council of Ministers of Spain. It still needs to be debated in Parliament.
New publication by Kees Waaldijk: ‘Others may follow: the introduction of marriage, quasi-marriage, and semi-marriage for same-sex couples in European countries’, in: 38 New England Law Review 2004, p. 569-589. Online available at: www.nesl.edu/lawrev/vol38/3/11-Waaldijk-PDF.pdf.
This article is based on the text of an affidavit written by the author in October 2003, at the request of the Department of Justice Canada, for the Supreme Court of Canada 'in the matter of a reference by the Governor in Council concerning the proposal for an act respecting certain aspects of legal capacity for marriage for civil purposes, as set out in Order in Council P.C. 2003-1055, dated the 16th of July 2003'. In this reference, the Canadian government is asking the Supreme Court of Canada for an advisory opinion on proposed legislation to open up the definition of civil marriage to same-sex couples (after appellate courts in two common law provinces ruled that the exclusion of same-sex partners from marriage is unconstitutional, and a superior court in civil law Quebec ruled the province's statutory bar to be similarly unconstitutional). The hearing on the reference is scheduled for October 2004.
Marriage open for same-sex couples in Belgium
Belgium has become the second country in the world where legislation has been passed to open up the existing institution of marriage to same-sex couples. As in the Netherlands, the Belgian law does not provide for presumed paternity for the female spouse of a married woman who gives birth during their marriage. In the Netherlands the two women in such a situation would automatically get joint parental responsibility over the child, and the non-biological mother could then ask in court to be allowed to adopt her spouse's child (see details below). In Belgium, on the other hand, there is no provision for joint parental responsibility, nor for adoption by a same-sex partner or a same-sex couple. Another difference with the Netherlands lies in the Belgian rules as to which international couples can marry, and which cannot. Belgian International Private law requires that the marriage is allowed by the national law of each partner. At this time this means that Belgians can only marry other Belgians or a partner from the Netherlands.
Law of 13 February 2003 opening up marriage to persons of the same sex and modifying certain provisions of the Civil Code, published in French and Dutch on 28 February 2003 in the Moniteur belge, Edition 3, entering into force on 1 June 2003. See www.moniteur.be.
How Holland did it
Discussion And Visibility Is Key In Ending Marriage Discrimination
Interview by Kevin Bourassa and Joe Varnell (of Equal Marriage for Same-Sex Couples, Canada)
And after nine months ...
lesbian partners in the Netherlands get full responsibility for children
When marriage was opened up for same-sex couples on 1 April 2001, one important distinction remained between lesbian and heterosexual marriages. If a child is born in a heterosexual marriage, the child automatically has the husband of the mother as its legal father, and that father and mother automatically share all legal and financial responsibilities over the child. Such joint parental authority plus joint parental maintenance duties do not arise automatically where a child is born in a lesbian marriage (nor where a child is born in a lesbian or heterosexual registered partnership). These responsibilities could only be obtained by petitioning the court. But this is now going to change on 1 January 2002. Any child born from that date into a lesbian marriage (or into a registered partnership of two women or of a man and a woman) will automatically, from the moment of birth, have two fully responsible adults: its mother and her spouse or registered partner. That spouse or partner will still not be deemed to be the "father" (nor "parent" or "second mother") of the child, but will have an equal share in the parental authority over the child and in the maintenance duties towards the child.
This is the result of the law of 4 October 2001 (amending various articles of Book 1 of the Civil Code) which was published in Staatsblad 2001, nr. 468). By virtue of a Royal Decree of 7 November 2001 (Staatsblad 2001, nr. 544) that law will enter into force on 1 January 2002.
Because children are only born into marriages and registered partnership that include at least one woman, a male co-parent who wants to share the legal and financial responsibilities with the father of the child will still need to go to court to ask for joint parental authority and maintenance duties.
A gay or lesbian co-parent who wants to have full parental status to complement these responsibilities, will have to go through the adoption procedure. Adoption by same-sex partners became possible in the Netherlands on 1 April 2001 (see below). The first such adoptions are expected to be decided by Dutch courts around January 2002.
For some background to the new piece of legislation, see my chapter 'Small Change: How the Road to Same-Sex Marriage Got Paved in the Netherlands', in: Robert Wintemute and Mads Andenæs (eds.), Legal Recognition of Same-Sex Partnership. A Study of National, European and International Law, Oxford: Hart Publishing 2001, p. 437-464.
Big book published:
Robert Wintemute and Mads Andenæs (eds.), Legal Recognition of Same-Sex Partnership. A Study of National, European and International Law, Oxford: Hart Publishing 2001.
At midnight on 1 April 2001, four laws are coming into force in the Netherlands (as a result of the royal decree of 20 March 2001, published in the official journal: Staatsblad 2001, nr. 145):
The law of 21 December 2000 on the opening up of marriage for same-sex partners (Staatsblad 2001, nr. 9). See summary-translation in PDF at the bottom of this page.
The law of 21 December 2000 on adoption by same-sex partners (Staatsblad 2001, nr. 10). See summary-translation in PDF at the bottom of this page.
The law of 13 December 2000 on various matters including the further equality between marriage and partnership registration (Staatsblad 2001, nr. 11; other parts of this law took effect earlier or later this year).
The law of 8 March 2001 adjusting various other laws to the opening up of marriage and adoption (Staatsblad 2001, nr. 128).
Still in Parliament is a bill to provide for automatic joint parental authority over children born during a lesbian marriage or a lesbian or heterosexual registered partnership [this bill has now become the law of 4 October 2001, and enters into force on 1 January 2002]. Until this bill has become law, married and registered lesbian couples who get a child, will need to petition the court if they want to have joint authority over that child. After the bill has become law and entered into force, such joint authority will automatically exist from the moment of birth.
From then on, the differences between registered partnership and marriage, and between same-sex marriage and different-sex marriage will be negligible. The position of same-sex and different-sex foreign partners with respect to marriage, partnership registration and immigration will be identical from 1 April 2001.
The only differences between a marriage of two men or two women and a marriage of a man and a woman are concerned with things that are largely beyond the sovereignty of the Dutch legislature, i.e. biology and foreign law. These differences are threefold:
- The rule that presumes the (male) husband to be the biological father of any child their wife might get during their marriage, will not apply to lesbian marriages (and naturally not to male-male marriage either). However, the same-sex partner of a mother or father can petition the court to be made the adoptive parent of the child. For children born to lesbian partners, there is no minimum period of joint care before which such adoption can be requested.
- Intercountry adoption (i.e. adoption of a child whose ordinary place of residence is not in the Netherlands) will only be possible by a different-sex married couple or by one individual. Opening up intercountry adoption to same-sex couples would not be very useful, because the authorities in the original country of the child would most probably not allow it to be adopted by Dutch same-sex partners.
- Only children born in a heterosexual marriage approved by Parliament can succeed as King or Queen. However, contrary to wishful speculation by certain authorities, there is nothing in the Constitution or the Civil Code which would prevent a King, Queen, Prince or Princess from marrying someone of the same sex. It would be unthinkable that parliamentary approval of such a marriage would be denied because of the gender of the royal partner. Therefore, a same-sex marriage would not stop anyone from being King or Queen.
Partnership registration of two men or two women (or between a man and a woman) has been possible in the Netherlands since 1 January 1998 (see summary-translation of that legislation in PDF at the bottom of this page). The (provisional) statistics of Dutch partnership registrations in 2000 have now become available (source www.cbs.nl). In three years time well over 6000 same-sex couples registered their partnership. An earlier survey suggested that more than 60% of these couples would hope to convert their partnership into a marriage. This could mean that within a year or so some 10.000 gays and lesbians might be married - to someone of the same sex.
From 1 April 2001 same-sex partners can marry each other (normally after a waiting period of at least two weeks). From the first moment of that day it is possible to convert an existing registered partnership into marriage (without waiting period). The procedure for an adoption takes a long time, so it will be several months before the first adoptions by same-sex partners will take place. The first same-sex marriage ceremony took place in the night of 31 March to 1 April. At midnight the registered partnerships of several same-sex couples were converted into full civil marriages.
As to foreigners marrying in the Netherlands: in each couple that wants to marry in the Netherlands, at least ONE of the partners should either have Dutch citizenship or have his or her 'domicile' and 'habitual residence' in the Netherlands. This rule has been applicable to different-sex marriages, and will be applicable to same-sex marriages. Another law has been adopted which will make the same rule applicable to partnership registrations (Law of 21 December 2000, Staatsblad 2001, nr. 11, replacing the existing requirement that EACH registering partner should be either a Dutch citizen or a lawful resident). This law is also entering into force on 1 April 2001.
In the case of TWO foreigners who wish to marry in the Netherlands, Dutch private international law does not require that they fulfil the conditions for marriage in the country of their citizenship (which would be impossible if they are of the same sex), provided that at least one of them has indeed 'domicile' and 'habitual residence' in the Netherlands. The latter requirement does not apply when ONE foreigner wants to marry a Dutch citizen.
It is not quite clear when living in the Netherlands amounts to having one's 'domicile' and 'habitual residence' there. The term 'domicile' seems to require being formally and lawfully registered as a resident of the Netherlands, whereas the requirement of 'habitual residence' seems to exclude people who continue to have their main home in another country while they work or study in the Netherlands for a year or less. A certain continuity of residence is required. Therefore foreign couples who would want to come to the Netherlands to marry here, should first take legal advice.
In Dutch immigration law the position of married, registered and unmarried cohabiting couples is almost identical. Therefore it will normally not be necessary to marry, or to register a partnership, in order to obtain a residence permit for one of the partners. Nevertheless, if a foreigner wants to immigrate to the Netherlands to join his or her partner there, it is advisable to first take legal advice about the other conditions (e.g. minimum income, housing, proof of relationship, formalities). Such advice can be given by Dutch consulates, Dutch lawyers, or the Dutch immigration service: http://www.ind.nl/EN/index.asp.
Now it is certain: The laws on the opening up of marriage and adoption for same-sex partners will indeed enter into force on 1 April 2001. The royal decree fixing that date has been signed on 20 March, and will be published in Staatsblad 2001, nr. 145.
On 21 December, Queen Beatrix of the Netherlands, and her then State-Secretary for Justice, Mr. M.J. Cohen, have signed into law the two bills to open up both marriage and adoption to same-sex partners. On 11 January 2001 the two Laws of 21 December 2000 were formally published in the Staatsblad (2001, nrs. 9 and 10). Both laws will enter into force on 1 April 2001.
Both bills (introduced by the Government on 8 July 1999) had been approved by the Upper House (Senate) of the Dutch Parliament on 19 December 2000. Here the bills were supported by the liberal and labour parties (VVD, D66 and PvdA) of the governing coalition, with additional support of the left-wing opposition parties. The opposition christian-democrat party, and the small strict Protestant parties voted against the bills. Two members of the governing liberal party (VVD) also voted against the adoption bill.
The debate centered around questions about the level of recognition Dutch same-sex marriages and adoptions would receive in other countries, and whether or not adoption by different-sex parents would be preferable. Intriguing questions were raised about the positon of royal princ(ess)es marrying someone of the same sex, and about registrars with conscientious objections against same-sex marriages. Both questions received typically Dutch fuzzy answers.
The Lower House of Parliament already approved both bills on 12 September 2000. There the marriage bill obtained a majority of 109 against 33 votes. The adoption bill obtained a similar, but uncounted, majority. Together with the governing and left-wing parties, a few members of the christian-democrat party voted in favour of both bills.
A separate Adjustment Law of 8 March 2001 (Staatsblad nr. 128) provides for various adjustments in other legislation that have become necessary as result of the opening up of marriage and adoption. This Law will also come into effect on 1 April 2001. It introduces gender-neutral formulations into those laws that still use gender-specific words for parents and spouses (e.g. in definitions of polygamy, half-orphans, etc.). It specifies that an intercountry adoption will only be possible by a different-sex married couple or by one individual (opening up intercountry adoption to same-sex couples would not be useful, because the authorities in the original country of the child would not allow it to be adopted by Dutch same-sex partners). It also replaces the old rule, that child benefit will be paid to the mother in case of disagreement between father and mother, by a gender-neutral rule: now the benefit office will decide to whom to pay the benefit in such circumstances. Finally it arranges the price for the new possibility of converting an existing registered partnership into a marriage (or vice versa).
European Commission on Sexual Orientation Law (ECSOL, a non-governmental, non-political network of legal experts from more than 40 European countries; its origins lie in EGESO, the European Group of Experts on Combating Sexual Orientation Discrimination that operated from 2002 to 2004)
International Lesbian, Gay, Bisexual, Transr and Intersex Association (ILGA, a federation of some 700 organisations from more than 100 countries)
ILGA-Europe (the European region of ILGA is an umbrella organisation with more than 300 member-organisations throughout Europe) Internationaal homo/lesbisch informatiecentrum en archief (IHLIA, the international gay/lesbian library, archive, information and documentation centre about homosexuality and sexual diversity in Amsterdam (Homodok) and Leeuwarden (Anna Blaman Huis))
The European Group of Experts on Combating Sexual Orientation Discrimination (EGESO) consisted of fifteen independent legal experts, and was established and funded by the Commission of the European Communities. It started its activities in 2002 and continued to operate until late in 2004. It produced a report in English (also available in French, see below), which formed the basis of a book and a few other publications.
Many members of EGESO later founded the European Commission on Sexual Orientation Law (ECSOL), which consists of independent legal experts from more than 40 European countries.
The book, by Kees Waaldijk and Matteo Bonini-Baraldi, is called:
Sexual Orientation Discrimination in the European Union: National Laws and the Employment Equality Directive
published by T.M.C. Asser Press, The Hague 2006, distributed by Springer,
isbn 90-6704-213-7 / 978-90-6704-213-0.
This book does not only cover the fifteen old member states (which were included in the report of the Group of Experts), but also the twelve new member states. It is partly based on summaries of legislation implementing the Directive in Latvia, Poland, Czech Republic, Malta, Cyprus, Bulgaria and Romania. Most of these summaries are available online; see the PDFs at the bottom of this page.
The English version of the final report is called:
Combating sexual orientation discrimination in employment:
legislation in fifteen EU member states.
Report of the European Group of Experts on Combating Sexual Orientation Discrimination
about the implementation up to April 2004 of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation
edited by Kees Waaldijk and Matteo Bonini-Baraldi with the cooperation of Alan Littler,
Universiteit Leiden, The Netherlands, submitted to the European Commission, November 2004, and published on the website of the European Commission, December 2004.
The report consist of an introducution, a chapter on European law (by Matteo Bonini-Baraldi), chapters on each of the fifteen old member states, a comparative overview, a comparative analysis, and conclusions, plus as an appendix a thematic study (by Alan Littler) on Discriminatory Partner Benefits.
La version française du rapport final est intitulée:
Combattre la discrimination fondée sur l'orientation sexuelle en matière d'emploi:
législation dans quinze États membres de l'UE.
Rapport du Groupe européen d'Experts dans le domaine de la Lutte contre la Discrimination fondée sur l'Orientation sexuelle
concernant la mise en oeuvre jusqu'en avril 2004 de la Directive 2000/78/CE portant création d'un cadre général en faveur de l'égalité du traitement en matière d'emploi et de travail
sous la direction de Kees Waaldijk et Matteo Bonini-Baraldi avec la coopération de Alan Littler,
Universiteit Leiden, Pays-Bas, soumis à la Commission européenne, novembre 2004, et édité sur le site web de la Commission européenne en janvier 2005.
A summary of the main findings of the report in Italian has been published as the chapter "Legislazione in quindici Stati membri dell’UE contro la discriminazione nel lavoro basata sull'orientamento sessuale: l’attuazione della direttiva 2000/78/CE", in the book: S. Fabeni & M.G. Toniollo (eds.), La discriminazione fondata sull’orientamento sessuale, Roma: Ediesse 2005, p. 491-526.
A summary of the main findings of the report in English has also been published as the chapter "Legislation in fifteen EU Member States against sexual orientation discrimination in employment: the implementation of Directive 2000/78/EC", in the book: A. Weyembergh & S. Cârstocea, The gays’ and lesbians’ rights in an enlarged European Union, Brussels: Editions de l'Université de Bruxelles 2006, p. 17-47.
The group's main tasks were:
- to produce a report on legislative measures taken by the then 15 Member States of the European Union to combat sexual orientation discrimination in the context of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation;
- to contribute to other studies and reports provided for in the Community action programme to combat discrimination (Council Decision 2000/750/EC);
- to gather legal and other information about sexual orientation discrimination, most of which has been stored in the online database of CERSGOSIG.
Austria - Dr. Helmut GRAUPNER (Lawyer, Vienna)
Belgium - Professor Olivier DE SCHUTTER (Faculté de Droit, Université catholique de Louvain)
Denmark - Mr. Søren BAATRUP (Lawyer, Frederiksberg, Denmark)
Finland - Mr. Rainer HILTUNEN (Lawyer, Helsinki)
France - Dr. Daniel BORRILLO (Faculté de Droit, Université de Paris X - Nanterre)
Germany - Professor Dr. Susanne BAER (Juristische Fakultät der Humboldt Universität zu Berlin)
Greece - Mr. Matthaios PEPONAS (Lawyer, Athens)
Ireland - Dr. Mark BELL (Faculty of Law, University of Leicester, England)
Italy - Mr. Stefano FABENI (Centro di Ricerca e di Studi Giuridici comparati sull'Orientamento Sessuale e l'Identità de Genere, CERSGOSIG, Torino)
Luxembourg - Dr. Anne WEYEMBERGH (Institut d'Études européennes de l'Université libre de Bruxelles)
Netherlands - Dr. Kees WAALDIJK (Faculty of Law - Universiteit Leiden)
Portugal - Judge Miguel FREITAS (Juiz de Direito)
Spain - Professor Rubio RUBIO-MARIN (Facultad de Derecho, Universidad de Sevilla, and Global Faculty Programme, New York University)
Sweden - Ombudsman Hans YTTERBERG (Ombudsmannen mot diskriminering på grund av sexuell läggning, Stockholm)
United Kingdom - Professor Robert WINTEMUTE (Centre of European Law, School of Law, King's College London)
This group of experts was run from the E.M. Meijers Institute of Legal Studies, at the Faculty of Law, Universiteit Leiden, The Netherlands. There the group's European coordinator was Dr. Kees WAALDIJK (Senior Lecturer in the Faculty of Law), assistant coordinator was Mr. Matteo BONINI-BARALDI, assisted by Mr. Alan LITTLER (researcher), Ms. Riekje BOUMLAK (secretary) and Mr Wout MORRA (research-assistant).
Recent updates on the implementation of the Employment Equality Directive 2000/78/EC (and of the Race Equality Directive 2000/EC/43) can be found in:
- the (country and thematic) reports of the European Network of Legal Experts in the Non-Discrimination Fieldon the grounds of Race or Ethnic Origin, Age, Disability, Religion or Belief and Sexual Orientation (this Network started its work late in 2004, to continue, among other things, the work of the European Group of Experts on Combating Sexual Orientation Discrimination which functioned 2002-2004);
- the European Anti-Discrimination Law Review (first issue published April 2005), which is made by the same European Network of Legal Experts;
- the European Commission's Annual reports on equality and non-discrimination.
For publications (in various languages) by Kees Waaldijk on law & homosexuality and on straight law, see the chronological list of publications from 1996 to 2011 and the systematic list of publications from 1981 to early 2008.