We feel privileged that we have been able to assist the transgender and intersex community in obtaining acknowledgement, apologies and financial compensation from the Dutch government for the pain and suffering inflicted by the former Transgender Act.
This legislation, in force in the Netherlands between 1 July 1985 and 1 July 2014, unlawfully restricted the rights of transgender and intersex persons and led to a gross infringement of their physical integrity and private life, among other things. To change the registered sex on their birth certificates, they had to undergo surgery to adapt their body to the correct gender (as far as possible and justified from a medical/psychological point of view). In addition, irreversible sterilisation was necessary: the person concerned should never again be capable of conceiving or giving birth to children – that is, there had to be absolute infertility.
Those who did not want to undergo these medical procedures were forced to go through life with an incorrect sex registration, having their own gender identity disregarded by the Dutch government and in daily life. The Transgender Act confronted the transgender and intersex community with an almost impossible and unfree choice between two evils. This disregard of how the individual in question would feel forced to proceed, caused a great deal of suffering.
On 6 December 2021, the Dutch government issued a public apology to the transgender and intersex community for the harm inflicted by requiring irreversible sterilisation and other far-reaching surgery before individuals were able to change their registered gender. During an emotional ceremony in The Hague's Hall of Knights, Ministers Sander Dekker and Ingrid van Engelshoven expressed their sympathy towards the group and specifically mentioned how deeply moving they found the personal stories which individuals had presented, detailing their tremendous suffering. The government acknowledges that the requirements to change a person's registered gender were in direct violation of the European Convention on Human Rights. The recognition and apology addresses anyone affected by the unlawful requirements under the Transgender Act, from its implementation in July 1985 until its amendment in July 2014. In addition, any individual that underwent the then mandatory surgery is entitled to EUR 5000 in financial compensation.
This broad apology is in direct response to the statement of liability issued on behalf of a group of individuals affected by the legislation; the interest groups Bureau Clara Wichmann, TNN and NNID; and with the support of our pro bono practice.
The outcome in this matter provides recognition for the transgender and intersex community who sacrificed their ability to have children in order to live a life in accordance with their gender identity, as well as for those who, by not complying with the state's far-reaching requirements, had to sacrifice that ability. Many of the stories told to the De Brauw team in the course of this matter were truly heartbreaking.
Machteld de Monchy and Janneke van der Kroon, lead lawyers in this case, describe the meeting with the Dutch government:
"Individuals affected by the legislation, the represented interest groups and the De Brauw team were able to attend, and everyone experienced the profound, emotional moment of silence that followed the government's sincere apology. It was immediately apparent that this was a historic and important milestone in the emancipation and acceptance of the transgender and intersex community. We are incredibly proud of the De Brauw team's role in achieving this result."
The De Brauw team will continue to work closely with the Dutch government and the interest groups and individuals involved in this matter. It is important to ensure that the financial compensation, the apologies and this public recognition all contribute to the wider social recognition and acceptance of the transgender and intersex community, and create a more informed awareness of the harm that the former Transgender Act caused.
The De Brauw team included: Machteld de Monchy, Janneke van der Kroon, Tristan Peters, Mira Smulders, Ingeborg Braam and Roos de Blécourt.