Freedom to Discriminate? Religious Freedom and Non-Discrimination in Conflict in the Netherlands
The Netherlands is known as one of the most secularized countries in Europe, as well as a leader in LGBT-inclusion (CBS, 2020). It may therefore come as a surprise to some that the Netherlands still has a Bible-belt running diagonally from southwest to northeast, in which orthodox-Protestantism is strongly represented. Recently, several controversies have arisen from the Dutch Bible-belt which inspired public debate on the right to religious freedom and the right of non-discrimination (Baars, 2020).
Controversies and Dutch Law
In a recent political controversy in the Netherlands, arising in November 2020, the Dutch Minister of Education defended orthodox-Protestant schools that required parents to sign an ‘anti-homosexuality statement’ (Keultjes, 2020). These statements were to make sure the parents’ morality adhered to that of the school, including the rejection of same-sex relationships. In the following year, more cases of homophobia from the Bible-belt came to light. A pastor who preached that homosexuality should be banned and that the COVID pandemic was a divine punishment for such sins, was acquitted by the prosecution (Keete, 2020). The debates that followed were extensively covered in the media, and questions were raised on how to balance freedom of religion and non-discrimination principles.
The Netherlands and Belgium are the only two countries in Europe who have religious education established in the constitution, meaning it is also funded by the state (Keultjes, 2020; Nederlandse Grondwet, n.d.). This constitutional establishment (Article 23) was the reason for the Dutch Minister of Education to argue that ‘anti-homosexuality statements’ are within schools’ rights, though he came back from this opinion after the political opposition fiercely criticized this (Baars, 2020). While the Minister has now agreed, with the association of Protestant schools, that these statements should no longer be used, it isn’t certain whether this will change anything in the overall climate of Protestant education. With Article 23 remaining untouched, religious schools continue to have a lot of freedom in how they approach LGBT-matters within their walls.
For individuals, other constitutional laws apply: Article 1 being the non-discrimination principle, and Article 6 being freedom of religion (Schaik, 2017). In principle, there are no hierarchies between constitutional rights, meaning it is up to the judge to decide which interest has priority. On top of that is article 137c in Dutch criminal law, which explicitly forbids insulting one’s sexual orientation – though it exempts religious speech . The case of the aforementioned pastor using homophobic language was brought to the attention of the Public Prosecution’s office, but was dismissed because of this religious exemption. Several similar cases were brought to court, but any time the defendant used language ‘in compliance with Biblical language’, the complaints were dismissed (see Nr. 01977/01, 2003; Nr. 00945/99, 2001). Even when the prosecutor agreed that the language was insulting, the high protection of religious speech ensures that this speech cannot be prohibited.
These cases raise questions as to how LGBT people can be protected from discrimination when discriminatory language is allowed. Particularly in areas where religious homophobia is common, such as the Dutch Bible-belt, this can lead to an unsafe environment for LGBT people with negative mental health impacts (Kelleher, 2008).
What does EU Legislation say?
The European Convention of Human Rights (ECHR) includes Article 9, freedom of religion and Article 14, protection from discrimination. The Council of the European Union writes the following in their guidelines on the protection of religion and LGBTI people: ‘the EU is committed to the principle of the universality of human rights and reaffirms that cultural, traditional or religious values cannot be invoked to justify any form of discrimination, including discrimination against LGBTI persons’ (Council of the European Union, 2013ab). The document further outlines ways in which the EU should help Member States, firstly to encourage them to promote equality and non-discrimination and secondly, in consulting with local organizations in civil society and fund these if it adds value (ibid, 2013a).
The constitutional laws in the Netherlands that protect religion, in combination with the position of religious political parties, makes it very unlikely that legislation will be changed to prohibit religious homophobia (Parlement, 2021). As such, local initiatives would be very valuable in helping LGBT people cope with the legal discrimination they have to face. Particularly in strict religious environments, such as the Dutch Bible-belt, local initiatives to promote the inclusion of LGBT people would be important to make them feel safe and less alone in their environment. Because the Netherlands is largely secular, these specific regional exceptions can quickly be overlooked, leaving minorities without social support where it is needed most. Through consultation with the EU, technical assistance to changes in policy can be discussed to bring legislation in line with international obligations (Council of the European Union, 2013a). Moreover, the EU’s assistance to civil society organizations that promote the inclusion LGBT people would be much needed when navigating this difficult topic.
The resistance to LGBT inclusion in strict religious environments should not be underestimated. It is therefore also important to recognize that change comes most smoothly when it is promoted from the inside (Rijke, 2019). Moreover, it should be emphasized that religious and LGBT people are not necessarily in conflict, as this narrative only further widens the gap of understanding between the two groups.
Recent controversies in the Netherlands have rekindled the debate on the conflict between religious freedom and the freedom from discrimination. Dutch legislation strongly protects manifestations of religion, even when it is discriminatory towards marginalized groups. LGBT people thus have to face legal discrimination when it is justified by religious convictions. EU guidelines emphasize the importance of freedom of religion as well as the protection of LGBT people. However, they also point out that religious values cannot be invoked to justify discrimination towards LGBT people. EU support can be helpful for its possibilities of technical and financial assistance to promote LGBT inclusion in civil society. It is of utmost importance that everyone in society enjoys the human rights they are entitled to. Being in a safe environment, protected from discrimination, should be a guarantee for anyone living in the EU.
De Nederlandse Grondwet (n.d.) Vrijheid van onderwijs in de Grondwet. https://www.denederlandsegrondwet.nl/id/vi9fk3zv7nq4/vrijheid_van_onderwijs_in_de_gron%20dwet
Council of the European Union (2013a). Guidelines to promote and protect the enjoyment of all human rights by LGBTI persons. Foreign Affairs council. https://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/137584.pdf
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Baars, L. (2020) Het is een worstelwedstrijd met grondrechten voor Arie Slob. Trouw. https://www.trouw.nl/onderwijs/het-is-een-worstelwedstrijd- met-grondrechten-voor-arie-slob~b8f9942a/
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Nr. 00945/99 (2001) ECLI:NL:PHR:2001:AA9368. LJN AA9368.
Nr. 01977/01 (2003) ECLI:NL:PHR:2003:AE7632.
Parlement (2021) Kabinetsformatie 2021. https://www.parlement.com/id/vlgudau133wd/kabinetsformatie_2021
Keete, M. (2020, November 13) Beklagprocedure tegen Krimpense predikant 'die vindt dat homo's mede-oorzaak zijn van coronavirus'. Rijnmond. https://www.rijnmond.nl/nieuws/201086/Beklagprocedure-tegen-Krimpense-predikant-die-vindt-dat-homo-s-mede-oorzaak-zijn-van-coronavirus
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Keultjes, H. (2020, November 10) Minister Slob vindt anti-homoverklaring scholen ‘een brug te ver. Het Parool. https://www.parool.nl/nederland/minister-slob-vindt-anti-homoverklaring-scholen-een-brug-te-ver~bdbc4156/
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Schaik, F. (2017). Vrijheid van meningsuiting en godsdienst versus het nondiscriminatiebeginsel. Potchefstroom Electronic Law Journal, 3(2), 64-83.