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Anti-discrimination law

The Netherlands has an extensive legal framework against discrimination. Transgender people are protected via the General Equal Treatment Act, the Criminal Code and article 1 of the Constitution. At the same time, the combination of gender and sex protection raises legal questions that are seldom addressed in mainstream coverage, particularly where factual statements about biological sex clash with identity-based claims.

The General Equal Treatment Act (AWGB)

The AWGB prohibits distinction on grounds of — among others — sex. Since an amendment in 2019 (Stb. 2019, 246), 'sex characteristics, gender identity and gender expression' have been explicitly included as grounds in the act. Transgender people are therefore protected in employment, education and in the offering of goods and services, even if they have not changed their sex registration.

Criminal Code

Articles 137c–137g of the Criminal Code prohibit group defamation, incitement to hatred and discrimination. In 2024 'gender identity' and 'gender expression' were added to these articles as protected grounds. In application, the regular criminal-law framework still applies: freedom of expression (article 7 of the Constitution, article 10 ECHR) remains a touchstone. The Public Prosecution Service and the court seek in concrete cases a balance between protection and the public debate on gender topics. Statements about biological sex, criticism of a legislative proposal or questions about medical care fall in principle under freedom of expression.

Article 1 of the Constitution

Article 1 of the Constitution has, since 2023, been broadened: discrimination on any ground whatsoever, including expressly 'sexual orientation' and — according to the explanatory memorandum — gender identity, is prohibited. Fundamental rights operate above all vertically (between government and citizen); for horizontal relations (between citizens) the AWGB is mainly invoked.

Enforcement and reporting points

Anyone who experiences discrimination can:

  • Submit a complaint to the Netherlands Institute for Human Rights. The Institute issues opinions, not binding rulings.
  • File a report with an anti-discrimination bureau (ADB) in the region.
  • File a report with the police in case of criminal discrimination.
  • Start civil proceedings at the district court.

Limits and exceptions of the protection

Discrimination prohibitions are never absolute. The AWGB and the European directives provide exceptions for:

  • Bona fide ecclesiastical functions where sex or marital status is a genuine requirement.
  • Safety and privacy in sex-based provisions (such as women's shelters, prisons, sport categories, intimate care). Here differentiation is permitted provided it is proportionate and has a legitimate aim.
  • Freedom of expression and academic practice: factual statements about biological sex, scientific debate about care models, and critical analysis of legislation are protected.

The European Court of Human Rights has, in Forstater v. CGD Europe-style cases in the UK, confirmed that 'gender-critical beliefs' (the view that sex is biological and immutable) fall under the protection of freedom of conscience and expression. There is still little case law on this in the Netherlands.

Tension between protection and discussion

A complicating point in current application is the tendency to label factual statements ('women are adult human females', 'a trans woman is biologically male') as 'transphobic'. Legally that is far from self-evident; socially it does touch on the public debate. For a sound application of discrimination law it is important to maintain the distinction between:

  • concrete disadvantage of a person on grounds of gender identity (prohibited);
  • factual or normative statements about biological sex and gender as a policy theme (permitted).

European dimension

EU Directives 2000/78/EC and 2006/54/EC have been interpreted by the Court of Justice as also applying to gender transition (P v. S and Cornwall County Council, 1996). At the same time the EU respects the competence of member states to maintain sex-based provisions, as recently confirmed in British case law (For Women Scotland Ltd v The Scottish Ministers, 2025).

See also