The Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (IE SOGI), Mr. Victor Madrigal-Borloz, will dedicate his report to the 53rd session of the United Nations Human Rights Council to an exploration of the right to freedom of religion or belief (FoRB) in relation to sexual orientation and gender identity (SOGI). Taking as points of departure international human rights law, and a rights-based approach centered on indivisibility and interdependence, the IE SOGI will explore the legal, political, and ethical dynamics between the human rights of persons with diverse sexual orientations and gender identities and the human right to freedom of religion or belief, as well as the narratives surrounding the implementation of these sets of rights.

The report will examine long-established and emerging discourses driving perceived contradictions between FoRB and freedom from violence and discrimination based on SOGI, with reference to legal concepts such as conscientious objection, reasonable accommodation for religious beliefs, and anti-discrimination law and public policies. In understanding the connections and the apparent points of tensions between the two rights systems,¹ the IE SOGI will analyse the potential for the two to limit one another, as well as synergies between the two frameworks. The goal is to provide legal and political narratives to shift away from zero-sum analysis and to reconcile the theoretical bases for due enjoyment of human rights by all persons. The report will put forward recommendations to States and other relevant stakeholders to fully comply with their obligations under international human rights law to protect and empower LGBT+ persons to pursue happiness, exercise and enjoy all their human rights, and choose how to contribute to society on an equal footing with everyone, including through effective participation in religious, cultural, social, and public life.

Background

With the legal recognition of, and pledges to protect, international human rights, State and non-State actors have recognized rights of personal religious freedom as well as institutional religious autonomy. Religious and spiritual narratives have also historically been used to promote, enable, and condone institutional and personal violence and discrimination against individuals based on sexual orientation or gender identity (real or presumed); repress sexual and gender diversity; and promote cisgendered and heteronormative norms of sexual orientation and gender identity. This has resulted in a variety of discriminatory normative constructions reinforced over time. As pointed out by the mandate of the United Nations Special Rapporteur on Freedom Religion or Belief (SR FoRB), the exercise of rights in this manner is antithetical to the very basis of the human rights system.² These practices cannot be justified under the rubric of FoRB, or indeed any other human right, to circumvent and defeat the rights of marginalized populations.³

Furthermore, the notion that religion – and thereby freedom of religion or belief, including the right to manifest such beliefs – is fundamentally antithetical to LGBT+ and gender-diverse persons and their human rights rests on essentialist assumptions about the unified substance of religious traditions across space and time. Exploratory evidence available to the mandate suggests that many anti-LGBT+ attitudes apparent in some strands of religious belief systems today are of relatively recent origin. Even within these religious traditions, many denominations today have embraced (or re-embraced) LGBT+ identities and consider freedom from violence and discrimination based on SOGI as an essential tenant of their faith.

Thus, a potential first step towards legally strengthening the human rights of LGBT+ individuals at the intersection with religious freedom is to unpack the notion of an inherent contradiction between FoRB, and freedom from violence and discrimination based on SOGI. The IE SOGI’s thematic report aims to introduce voices from LGBT-inclusive belief systems, indigenous communities, and LGBT+ communities of faith as key stakeholders. The IE SOGI also intends to open a space within human rights discourse and practice to better recognize and protect LGBT+ persons’ access to faith and spirituality, as persons free and equal in dignity and rights, and their access to spirituality in accordance with their own right to freedom of religion or belief.

Call for Inputs

The Independent Expert invites all interested States, civil society organisations, faith-based institutions, faith leaders, academics, international organisations, national human rights institutions, activists, corporations, and others, to provide written input to the following questions for his thematic report.

Respondents are requested to limit their comments to a maximum of 2,500 words. Additional supporting materials, such as reports, academic studies, and other types of background materials may be annexed to the submission.

1. What are the actual or perceived points of tension (if any) between the right to manifest one’s freedom of religion or belief, and freedom from violence and discrimination based on sexual orientation and gender identity? Are there any areas in which they are mutually exclusive?
2. Are there any ways in which the right to freedom of religion or belief, and freedom from violence and discrimination based on sexual orientation and gender identity are mutually reinforcing?
3. Are there examples where gender and sexual diversity has been used in religious, traditional, or indigenous narratives or values in a manner which promotes the acceptance of LGBT+ individuals, or protects LGBT+ individuals from violence and discrimination? Has this informed any legal interventions or public policies?
4. What are the key trends or significant instances of discriminatory or abusive practices by individual providers of goods or services in the public sphere against LGBT+ and gender-diverse persons that rely on religious narratives?
5. Has the State adopted, in public policy, legislation or jurisprudence, norms purportedly based on protecting freedom of religion or belief that promote, enable and/or condone violence and discrimination against individuals based on sexual orientation or gender identity? If so, please give examples, with commentary as needed to explain context, scope, and application.
6. Has there been any legal challenge to these policies/provisions under any domestic, regional, or international human rights provisions? If so, state the outcome and rationale of the case. If not, provide your opinions as to why such a challenge has not yet been brought.
7. Are there any examples of State restrictions based on preventing violence and/or discrimination against LGBT+ persons that prohibit or limit practices undertaken in the name of the religion or spirituality, such as public accommodation non-discrimination protections? If so, have they been legally challenged on the basis of freedom of religion or belief? If yes, explain the outcome and rationale of the case(s).
8. What role (if any) has the concept of conscientious objection played in limiting the full enjoyment of the right to freedom from violence and discrimination on the basis of sexual orientation and gender identity?
9. Has the scope and application of conscientious objection been sufficiently defined, limited, and/or regulated so as to strike a fair balance between manifestation of one’s freedom of religion or belief, and freedom from violence and discrimination based on SOGI? Where the doctrine is invoked to permit the withholding of goods or services to members of the LGBT+ community (such as in the context of sexual and reproductive healthcare, provision of marriage licences, access to consumer goods, etc.), do State laws provide alternative access to goods or services?
10. Where State legislation or policy requires the reasonable accommodation of religious beliefs, practices, and/or institutions, are there instances where such laws or policies limit freedom from violence and discrimination against LGBT+ and gender-diverse persons? These may include but are not limited to exemptions from non-discrimination legislation, and/or accommodations within the workplace, educational institutions, healthcare-settings, the justice system, etc. Are there reports of violence, spiritual abuse, and/or other forms of discrimination against LGBT+ and gender-diverse persons because of these practices?
11. Good Practices:
    1. Provide any examples of good practice – at the international, national or local level – where State and non-State actors (including faith leaders, groups and organisations, international organisations, civil society organisations, and the UN human rights system) have taken effective measures to protect and promote freedom of religion or belief of LGBT+ and gender-diverse persons, and made efforts to prevent, mitigate and respond to any violence and/or discrimination justified in the name of religion.
    2. Provide any examples of measures by State or non-State actors to ensure effective participation of people with diverse gender identities and sexual orientations in religious, cultural, social, and public life. Please provide relevant examples where LGBT+ people have asserted their individual or collective rights to access (or establish) religious or spiritual frameworks and institutions.

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