2 December 2020

The Dutch government issues public apology to the transgender and intersex community

Machteld de Monchy
Ingeborg Braam
Mira Smulders
+ 2 other team members

We feel honoured that our assistance to the transgender and intersex community has led to acknowledgement, apologies and financial compensation from the Dutch government for the pain and suffering inflicted by the former Transgender Act.

The former Transgender Act, (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, inter alia, their physical integrity and private life. In order to change their incorrectly registered sex on their birth certificates, the former Transgender Act required, among other things, that the person in question should undergo surgery to adapt their body to the correct gender, (as far as was 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, i.e. absolute infertility.

In the event that a person did not wish to undergo these medical procedures, that individual was 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 former Transgender Act confronted the transgender and intersex community with an almost impossible and unfree choice between two evils. This dilemma, regardless of how the individual felt forced to proceed, caused a great deal of suffering for the individuals involved.

On Monday, 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 a session kicked-off by Ministers Sander Dekker and Ingrid van Engelshoven, the Ministers expressed their sympathy towards the group and specifically mentioned how deeply moving they found the personal stories which individuals 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 a monetary compensation of EUR 5000.

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 both the transgender and intersex community who sacrificed their ability to have children in order to be able to live a life in accordance with their gender identity, and those who, by not complying with the State's far reaching requirements, had to sacrifice their ability to live a life in accordance with their gender identity. Many of the stories told to the De Brauw team in the course of this matter were truly heart breaking.

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 be present, and all experienced the profound and 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 and humble of the De Brauw team's role in achieving this result."

The De Brauw team will continue to work closely with the Dutch government, the interest groups and individuals involved in this matter. It is important to ensure that the financial compensation regulation, 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 consisted inter alia of: Machteld de Monchy, Janneke van der Kroon, Tristan Peters, Mira Smulders, Ingeborg Braam and Roos de Blécourt.