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Netherlands: Legislative Proposal on Transgendered Individuals

(Sept. 25, 2012) On August 24, 2012, Fred Teeven, the State Secretary of Security and Justice in the <?Netherlands, submitted to the Lower House of the Dutch Parliament a legislative proposal that would affect the civil status of transgendered persons. (Legislative Proposal on Transgenders to Lower House, Government of the Netherlands portal (Aug. 24, 2012).) The proposal calls for amendment of the Dutch Civil Code and of the Law on Municipal Personal Records. (Transgenders Explanatory Memorandum [in Dutch], Government of the Netherlands portal (Aug. 24, 2012) [scroll down page to view hyperlink].)

More specifically, the draft law, if adopted, would affect articles 20, 28, 28a, 28b, and 28c of Book I (Family Law and the Law of Persons) of the Civil Code (Burgerlijk Wetboek Boek I) and articles 27 and 81 of the Law on Municipal Personal Records (Wet gemeentelijke basisadministratie persoonsgegevens). According to Explanatory Memorandum No. 3 on the draft legislation, the proposed changes follow upon the government’s commitment to change the law given at the end of section 2(2) of the Guidelines of Emancipation Policy: Women and Homosexual Emancipation Policy 2015, included in an April 8, 2011, letter to the Lower House of the Parliament from J.M. van Bijsterveldt-Vliegenthart, Minister of Education, Culture and Science. (27 017 Homo-emancipatie beleid [27 017 Gay Emancipation Policy], OVERHEID.NL (Apr. 12, 2011); LGBT AND GENDER EQUALITY POLICY PLAN OF THE NETHERLANDS 2011 – 2015, Government of the Netherlands portal (Jan. 10, 2012).)

Under the proposal, it would be easier for transgenders to change the gender indicated on their birth certificate. It provides that Dutch citizens who are at least 16 years of age may request to have their birth certificate changed. Transgenders would no longer have to undergo surgery or hormone treatments in order to adapt his or her body to the desired gender; they must just have a lasting conviction that they belong to the opposite gender. In addition, the “sterilization provision” of the law, stipulating that the birth certificate cannot be changed unless the transgender is infertile, would be eliminated. Instead, it would suffice for an expert such as a psychologist or psychiatrist “to establish that the transgender person’s conviction is of a permanent nature.” (Legislative Proposal on Transgenders to Lower House, supra.)

Based on such a statement from an expert, the registrar of births, deaths and marriages would be permitted to change the gender indicated in the birth certificate, without any need for a court order. (Id.) Explanatory Memorandum No. 3 includes a section on the “international situation,” in which it provides comparative information on various European countries, including Austria, Belgium, Portugal, Spain, and the United Kingdom, that have already instituted similar administrative procedures regarding transgenders. (Id.; Transgenders Explanatory Memorandum, supra.)

It appears that vesting the civil status registrar with the power to change the birth certificate by assessing the expert opinion is controversial. In the view of the Council of State (Raad van State), an advisory body to the Dutch government, that power of assessment should remain with the court. (Council of State Advisory Opinion on the Legislative Proposal [in Dutch], STAATSCOURANT, No. 17963, OVERHEID.NL (Sept. 5, 2012).)

According to a Ministry of Security and Justice statement, “[f]or people who have a male or a female body, but have a deep wish to be a person of the other sex, the abolishment of the sterilisation provision and the requirement to adapt physically to the desired gender indicates a broader acknowledgement of their gender identity.” (Id.) The statement also points out that a gender change in the birth certificate has ramifications for a broad range of government units, and affects “passport and other travel documents, as well as school diplomas and university degrees.” (Id.) It also notes that internationally the conviction is spreading “that the statutory recognition of a person’s gender identity should not be subject to requirements like sex change surgery or hormone treatment.” (Id.)