The Exclusion of Same-Sex Ballroom Dance Couples in the Legal Arena
Wibren van der Burg1 (work in progress, please do not quote without permission)
Paper presented at Conference United against Homophobia in Sports, EGLSF/ EPAS Council of
Europe, Utrecht, 12 October 2012
1. Background
In ballroom dancing, the problem from a LGBT perspective is not the absence of openly out
athletes. There are many gay men competing, including world champions. For example, at
the Gay Games Amsterdam in 1998, the former World Champion Latin, Louis van Amstel,
openly gay, gave an impressive demonstration together with his male trainer. At the Gay
Games Amsterdam in 1998, ballroom dancing was included for the first time, and it was a big
success.
The problem is rather the exclusion of same-sex couples, in social dance events, in
dance classes and dance contests. A dance couple is supposed to consist of a male and a
female partner. Moreover, the man should lead and the woman must follow, and they
should wear gender-specific dress. Thus although LGBT individuals are accepted, they are
not allowed to express their sexuality through their choice of dance partner.
For many gays and lesbians this rule implies that they cannot dance with whom they
want (if the partner of their choice is a person of the same-sex). Ballroom dancing (with
subdisciplines Standard and Latin-American) is a sport in which the partners move in close
physical contact; often an element of seduction and flirting is woven into the character of
the dance, for example in dances like the rumba and the tango. Most straight dancers prefer
to dance with a partner of the opposite sex, and not merely because this is the way the
dance has historically developed; obviously, they would have this preference even if they
were to have a free choice to dance with a partner of the same-sex. Many gay and lesbian
dancers (though certainly not all) similarly prefer to dance with a partner of the same-sex
(sometimes also with their own life companion), as part of their homosexual identity.
Because same-sex couples are so visible an expression of gay and lesbian identity and
counterculture, it is one of the most popular sports to watch at Gay Games and Euro Games.
1
Professor of Legal Philosophy, Erasmus School of Law, and legal advisor Equality dancE.
www.wibrenvanderburg.eu. Email: Vanderburg@law.eur.nl.
1
Since 1995, the Dutch organisation Equality DancE2 has tried to promote same-sex dancing,
for example by organising various yearly competitions, by providing information (both to
gays and lesbians looking for places to dance and to outsiders interested in the
phenomenon), and by networking and trying to convince regular dance organisations and
dance schools to accept same-sex dancing.
A central problem on the agenda of Equality DancE was the traditional mentality in
the regular dance world, and the unwillingness to accommodate same-sex couples. As this
obviously required a fundamental change of mentality, Equality DancE’s strategy has mainly
been one of networking, informal contacts and inviting people from the regular dance world
to same-sex dance contests to get familiar with it, e.g. as jury members. However, at three
occasions (for two different cases), legal institutions were involved.
2. 1997: the first case of the Equal Treatment Commission3
The first case was one in 19974 when a dance contest organizer feared that same-sex
couples might want to participate in his contest. He approached the Equal Treatment
Commission (ETC) in order to get a ruling that exclusion of same-sex couples was not against
the law.5 It was obvious for him that this was the legal case; he was so convinced that this
must be true that he could not imagine the Commission reaching a different conclusion.
Nevertheless, they did, but it illustrates how deeply entrenched the idea was and is that a
same-sex dance couple is not normal. The Commission stated clearly that the exclusion of
same-sex dance couples is a violation of the Dutch Equal Treatment Act (ETA). It was
considered to be a form of direct discrimination on the basis of sex (as a woman is
prohibited to dance with a woman), and this discrimination could not be justified by
convincing and acceptable arguments that sex was relevant in this case. Moreover, it was a
form of indirect discrimination on the basis of sexual orientation, for which no objective
justification could be given either.
2
http://www.equalitydance.nl.
Since October 2012, this Commission no longer exists; it has been incorporated in the new Committee for
Human Rights.
4
http://www.mensenrechten.nl/publicaties/oordelen/1997-29
5
Under the ETA, victims could submit complaints to the Commission but persons and organizations could also
ask for an opinion on whether their own actions were in conformity with the law. This first case was of the
second type.
3
2
In this case, Equality dancE was invited to act as an expert witness. One of the board
members, an experienced dance teacher and judge and co-owner of the first Dutch dance
school for same-sex couples in Nijmegen, gave an excellent testimony that helped to
convince the Commission.
Since then, only limited progress was made with regard to the integration of samesex couples in the general dance world. Two smaller dance unions accepted same-sex
couples in contests, and many dance schools did so as well. However, resistance against full
integration remained strong.
3. 2004: The second case of the Equal Treatment Commission
A concrete occasion to test the waters arose when a male couple (which had been at the top
in the Netherlands for the past years in dance competitions for same-sex couples) no longer
wanted to have to go abroad to international same-sex dancing contests for being able to
compete with couples of a similar levels. They expressed the wish to participate in regular
contests organized by the official Dutch dance association, the Nederlandse Algemene
Danssport Bond (NADB), member of the NOC*NSF. The NADB is the only Dutch member of
the World Dance Sport Federation (WDSF, at the time still named IDSF) and organizes the
most important Dutch championships. If a couple at a high dance level wants to compete at
their own level, the only opportunities are to be found in the contests organized by or under
the auspices of the NADB.
Equality dancE received support from the Stichting Homosport Nederland (also a
member of NOC*NSF; nowadays called Gay Union Through Sports). The two organizations
contacted the NADB. The board of the NADB, however, refused to accommodate the couple
at the most principal point, even if they were willing to accommodate same-sex couples at
other points. The NADB referred especially to the international competition rules of the
IDSF; they felt obliged to follow these rules strictly. On the crucial point, therefore, the views
remained strongly opposed. Consequently, Equality dancE, Homosport Nederland and the
dance couple filed a case with the Equal Treatment Commission.6 They were supported by
two lawyers: one a public prosecutor with much practical experience in anti-discrimination
law; the other, myself, a law professor with much expertise on the Equal Treatment Act –
the reason that I was involved was that I also was the partner of one of the two dancers.
6
http://www.mensenrechten.nl/publicaties/oordelen/2004-116
3
The opinion of the Commission was clear and elaborately argued. Exclusion of samesex couples at dance contests is a prohibited form of direct discrimination on the grounds of
homosexual orientation and it is a prohibited form of direct discrimination on the grounds of
sex.
Firstly, the exclusion of same-sex couples is “the result of an aversion to homosexual
orientation as such and certainly to visible expressions of homosexual identity, even if
among the dancers there are many homosexuals.” Moreover, for the couple, participation in
dance contests is an expression of their homosexual identity as they have the desire to
dance with a partner of the same-sex. The Dutch Equal Treatment Act does not acknowledge
any exceptions or justifications once an action has been qualified as a form of direct
discrimination on the grounds of homosexual orientation. As a consequence, this
qualification alone would have sufficed to make the exclusion in the dance competition rules
a prohibited form of discrimination and thus a violation of the law.
Secondly, it is also direct discrimination on the grounds of sex. According to the
Commission “the sex of the dancer as such is determinative of his or her possibilities to
participate in contests.” As a man can only dance with a woman, it is obvious that there is
discrimination on the grounds of sex. When discrimination on the grounds of sex has been
established, there are a number of possible exceptions. One exception is a case where sex is
a determining factor. The relevant criterion in this case is “the participation in activities in
the domain of sports and games, (i.) insofar as a relevant difference exists in the average
achievements of men and women, or (ii.) insofar as it concerns the admission to activities,
separate for men and women, in an international context, and in an international context
agreements have been made or rules hold which imply that requirements are to be set with
regard to the sex of the participants.”
The first relevant exception clause (i.) could be that there are relevant differences.
However, the commission held that it had not been shown that a possible difference in
muscular force of women and men will lead to significant differences in achievement
between traditional couples and same-sex couples. Therefore, this exception does not
apply.7
7
Even if such a significant difference in achievement would have been accepted by the Commission, the
general ban on same-sex couples in the competition rules would still have been illegal, as such a difference
would certainly not have justified the exclusion of female couples in the higher classes, or of same-sex couples
in the lower classes.
4
The second relevant exception clause (ii.) was that of international competitions on
the basis of international rules where men and women compete separately. The commission
discarded the appeal to this exception by stating that the mere fact that NADB dance
contests are also open to foreign couples does not give these contests an international
character.
Therefore, neither of the possibly relevant exceptions applied in this case, and the
Commission concluded that the exclusion of same-sex couples is also a prohibited form of
discrimination on the ground of sex.
This case had much wider ramifications than merely those of the case at hand. The
Commission clearly stated that even in the context of competition, exclusion of same-sex
couples cannot be justified. The general implication must be that, a fortiori, in the context of
social dancing, dance lessons and training, the exclusion of same-sex couples is also a
violation of the law.
4. After the second case
It should be noted that the opinions of the Equal Treatment Commission have legal
authority, but they are not legally binding on the parties. In most of the cases, however, the
parties in a procedure (and if invoked, the courts) tend to respect these opinions. The gay
organizations, therefore, hoped that the NADB would also follow the judgment of the
Commission and would allow the dance couple to compete. However, the NADB did not
grant the couple permission for participation in contests.
For one and a half year, we had intensive contact and waited for the opinions within
the NADB to settle down and move in the right direction. As an experiment, the couple was
once allowed to dance in a contest organized by the chairman of the NADB – who personally
saw no problems with that participation. Soon after that, however, a new chairman was
elected and we had to build up relations with him all over again. At the end, the new
chairman and I had to conclude that the membership of the NADB (the members not being
dancers but commercial dancing schools) simply did not support integration in regular dance
contests, so that the only option was to bring the case to court.
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5. The civil law suit of 2006
For various practical reasons (especially reasons of timing), we opted to bring the case for
the expedited procedure in private law (‘kort geding’). In hindsight, I believe this may have
been a strategic mistake, even if it was the only feasible alternative at the time. We
encountered a judge who did not seem to have any real knowledge of the Equal Treatment
Act, let alone of the more subtle ideas behind it.
First, she held that there was no form of discrimination on the basis of sexual
orientation at all, neither direct, nor indirect – as the NADB did not exclude gay dancers
individually. This was according to all the experts I have spoken, an obviously incorrect
ruling. The question of whether or not it is direct discrimination on the grounds of sexual
orientation is open for discussion, as was demonstrated by the fact that the ETC denied so in
the first case and only accepted it in the second case. But it is, from a legal point of view,
incomprehensible that there was deemed to be no indirect discrimination on the basis of
sexual orientation. There is no point in denying that, even though the exclusion of same-sex
couples is not based on discriminatory intent or bias against individual gays and lesbians, it
does have negative consequences for many gays and lesbians.
And second, she held that although there was direct discrimination on the basis of
sex, in the context of an expedited procedure it could not be determined whether there
were any significant differences in power and endurance between all-male couples and
mixed couples.8 Therefore she denied the claim. Moreover, she ordered the couple and the
gay organizations to pay the legal expenses of the NADB.
Even the chairman of the NADB admitted that the judgment was legally dubious and
that it had not brought the final authoritative settlement we had both hoped for. Even
though it may have been a legally incorrect judgment – it was a court judgment that
supported the position of the NADB and therefore, they certainly would not change the rules
voluntarily.
8
This was also a legally incorrect interpretation of the ETA, as the ETA implies a reverse burden of proof. If it is
demonstrated that someone has made a difference in treatment on the basis of sex (in other words, has
discriminated directly), it is on him to prove convincingly that there were good reasons for this difference in
treatment. If the judge was not convinced that there was conclusive evidence of differences in power and
endurance, she should have concluded that the evidence had not been provided and thus that the NADB acted
against the law.
6
As a result of the lost case and the cost awards for the winning party, the financial
resources of the gay and lesbian organizations had become inadequate to allow any further
procedures in the short term – an appeal was impossible. Moreover, the second argument
would be difficult to counter in the context of an expedited procedure. So we decided to go
for the more time-consuming ordinary procedure in private law (‘bodemprocedure’), and try
in the meantime to find adequate funding. I drafted most of the legal materials necessary.
But then something happened that made further procedures out of the question: one of the
dancers decided to quit dancing. Training two or three times a week (including two hours of
travelling) had become too much of a burden. So the dance couple split up, and there was
no longer a case to be argued in court.
If any other couples want to start a new procedure, the legal part will be easy: I have
most of the necessary materials in my computer. But since 2006 no new same-sex dance
couples have come forward with the wish to participate in the NADB competition, so we will
have to wait till a new occasion arises.
6. Some points for discussion (to be elaborated)
1. Success for legal action depends heavily on the so-called legal opportunity structure,
esp.:
a. The formulation of the statutory texts (the ETA-text favors gay organizations
because of its ‘closed structure’ leaving little room for balancing)
b. The processional possibilities (ETC is cheap, no formal obstacles, no attorney
needed, much expertise, elaborate proceedings. Civil law suits are costly, also
because of the risk of cost awards; little expertise and time with judges; too
long time for ordinary civil law suits (athletes can’t wait for many years!)
c. The legal resources available (in this case there was a legal expert spending
hundreds of unpaid hours, and an almost pro deo attorney)
d. The test case available (it would have been better if a female couple had
joined the suit – to counter arguments about more power and endurance for
male couples leading to unfair competition)
e. The general acceptance and legitimacy of specific statutes such as the ETA
and advisory organs such as the ETC (both are low among ordinary judges)
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2. Success for both non-legal negotiations and legal proceedings also depends on the
informal and social opportunity structure
a. Alliances: support of leading regular dancers (two of the most successful
Dutch dance champions were on our side)
b. Good contacts with the media and sports organizations (NOC*SNF)
c. Internal organizations and frictions of negotiation partners (NADB was
internally strongly divided; made negotiations cumbersome and ineffective)
d. Lack of financial means available can be a real bottleneck
e. The availability of courageous couples that can stand the heat and that are
also good ambassadors to the cause.
3. Negotiations in the shadow of the law
a. ETC judgments were important as pressure on the negotiations with the
NADB and other dance unions.
b. In case of mentality change: how to make a choice for long-run
communicative strategies focusing on educating, convincing and making
stakeholders and key figures familiar with same-sex dancing versus short term
legal strategies with risk of all or nothing.
c. Because negotiation does not take place in public, the membership andd the
grass-roots of the various organizations is not involved and not informed;
whatever the result will be (a compromise or a court case), it will be
unexpected, and moreover they will not have gone through the process of
mutual accommodation that the negotiators have experienced.
4. Tension between legal framing and common sense framing: Is it discrimination?
The common sense idea is that discrimination is intentional exclusion of persons based on
prejudice. This does not fit in with the legal frame which regards discrimination as unjustified
unequal treatment, especially on basis of suspect classifications, regardless of intent or
prejudice.
a. Exclusion of same-sex couples is not exclusion of gay persons, therefore no
discrimination. Versus relational aspect in dancing; couples can also be object
of non-discrimination law.
8
b. Dancing is a sport; it is not about sex on the dance floor.9 Versus expression of
sexuality involves also with whom you want to dance, especially with social
dancing.
c. Roles of leader and follower are just traditional; to make comparison possible
everyone has to take the same role (couples consisting of a female
leader/male follower are also prohibited). Versus: critique on gendered
stereotypes, and on prohibiting transcendence of gendered roles (also by
changing roles during the dance).
d. Dress code is just traditional, so men/leaders should wear costumes or tails;
women (but not following men!) should wear dresses. Versus: free choice of
dress is part of one’s sexual identity.
e. Fair competition requires equal power and endurance. Versus strict legal
requirements on burden of proof, and impossibility to have this discussion
(because of closed structure ETA) once there is qualification as direct
discrimination on basis of sexual orientation.
9
There is a fatal inconsistency here, however. In the interpretation of the dance, it is often a dance of
seduction, passion, sensuality and sexual attraction. “I want more sexuality on the dance floor” as one of the
judges in the Dutch version of Strictly Come Dancing expressed it. Once we accept this character of the dance,
the argument that it does not matter that gay persons have to dance with a different-sex partner is no longer
defensible.
9