Justice For All: Comparing Protection Against Civil Rights Discrimination in the Netherlands an United States

By: Morgan Comite

April 4 2023

On January 17th, the Dutch Senate set forth an amendment to their constitution granting protections against sexuality or disability-based discrimination. The Senate updated their constitution to include that “[a]ll persons in the Netherlands shall be treated equally in equal circumstances.” Through a lengthy process, 56 out of 68 of the Dutch Senate voted in favor of expanding the rights to all people in the country. This monumental expansion is a groundbreaking victory for members of the LGBTQ community.

The Netherlands have always established in their constitution that discrimination based on religion, belief, political opinion, race or “on any other grounds” shall be prohibited. Yet, the 2023 amendment to the Article reads as, “discrimination on the basis of religion, belief, political opinion, race, gender, disability, sexual orientation or on any other basis is not allowed.” This amended portion of Article 1 explicitly states that disability and LGBTQ+ communities will now be constitutionally safeguarded from any discrimination.

In 2001, the Netherlands became the first country to legalize gay marriage. Yet even this victory did not prevent members of the LGBTQ+ community from suffering abuse, whether verbal or physical, in the country. Since 2004, the advocacy group COC Nederlands has been advocating for the rights for members of the LGBTQ+ community. After 12 years, this amendment finally was enacted and unambiguously mentions sex and disability, strengthening the Dutch protection against discrimination. 

Since 1798, the Netherlands has been amending their constitution to stay “up to date” with the societal changes, including this 2023 amendment. Yet, the United States has not made any amendments to their constitution after the 27th Amendment in 1992. Nonetheless, there is a federal law banning discrimination in the United States.

In the midst of civil rights activism, the United States enacted the Civil Rights Act of 1964, barring segregation in “all places of public accommodation, including courthouses, parks, restaurants, theaters, sports arenas and hotels.” A provision under the act, Title VII, prohibits employment discrimination based on race, color, religion, sex, and national origin, and created an Equal Employment Opportunity Commission capable of filing lawsuits on behalf of injured workers. The act was later expanded to include disability and age, paving the way for desegregation across the country.

The act outlawed discrimination on the basis of sex and race in hiring, promoting, and firing. Specifically under Title VII, making it illegal “to use policies or practices that seem neutral but have the effect of discriminating against people because of their race, color, religion, sex (including pregnancy and related conditions, sexual orientation, and gender identity), or national origin.” This means an employer is prohibited from intentional and unintentional employment discrimination.

Additionally, the enforcement of voting rights and desegregation in school was strengthened through this civil rights legislation. The Act ended the implementation of state and local laws that enforced racial segregation, “Jim Crow” laws, upheld since 1896, and prohibited discrimination in public accommodations and federally funded programs.

Although the purpose is powerful and the legislation enforceable, the Civil Rights Act of 1964 is only a federal act. An amendment to the constitution makes a change to existing law. However, statutory initiatives bring about new laws that bring proposals for more legislation within each state. Meaning, while a federal act is required for all states to follow, each state may have different requirements as to how to follow the law.

An amendment to the constitution is more permanent. Article V of the Constitution describes the difficult, lengthy procedure for amending the constitution; however, this results in an even more difficult, lengthier procedure for overturning an amendment. On the other hand, legislation is easier to pass, passing by a simple majority. It is easier to overturn by having the Executive Branch override through a veto or the Judicial Branch declaring an act unconstitutional.  Therefore, a constitutional amendment prevents deprivation of rights on a stronger level.

Because the Netherlands added the protections against sexuality or disability-based discrimination to their constitution, members of both communities will now be permanently safeguarded from discriminatory practices. Nevertheless, the United States is behind in establishing an anti-discrimination amendment to their constitution. Even though the Civil Rights Amendments and the 19th Amendment establish that all citizens are equal, can vote, and are protected by the law, the United States Constitution itself does not unequivocally forbid discrimination on the basis of religion, belief, political opinion, race, gender, disability, and sexual orientation.

The constitutional recognition of sexual orientation and disability rights by the Netherlands marks a historic victory for the guarantee that all people in the country, “[e]ven if the political or social winds unexpectedly shift,”  will be equally able to enjoy their rights as any other citizen would. The United States continues to be on the right path to equality, but following the Netherlands would result in an everlasting assurance that all men [and women] are created equal.

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