Montserrat Gas-Aixendri is Full Professor of Law and Religion at Universitat Internacional de Catalunya (Barcelona, Spain)
In a 2013 Report, the UN Special Rapporteur acknowledged that freedom of religion or belief and gender equality sometimes seem to be in an artificial antagonism. In fact, synergies between the freedom of religion or belief and promoting gender equality remain systematically underexplored, discouraged, or delegitimized (para. 32-33, 42). Though the 2020 Report on religious freedom and gender equality rightly condemns violence and discrimination against women, girls, and LGBT+ persons based on the pretence of religious freedom, I must confess that I expected this report to have the courage to take on the challenge of finding synergies between the freedom of religion or belief and promoting gender equality. However, in many ways my expectations are left unmet. In the following paragraphs, I will try to comment on how the report addresses the issue of autonomy of religious institutions in the context of gender equality and why some of its points should be criticized.
Democracy, State Neutrality, and Religious Autonomy
Democratic societies depend on the fair balance between state neutrality and religious plurality. This equilibrium is conducive to ensuring public order, peace, harmony, and tolerance within society, a necessary characteristic for democracies. The state has a duty to remain neutral towards the various ideals of the good life. In the context of the freedom of religion or belief, it means that the state does not favo one religion or belief over another. Neutrality also implies the obligation of the state to respect the religious choices of its citizens, whether or not they fit widespread beliefs within the country, and regardless of whether such beliefs are popular or unpopular. Neutrality is incompatible with any power to assess the legitimacy of religious dogmas or the ways in which those are expressed.
Religious pluralism, one of the cornerstones of democratic societies, is grounded in the genuine recognition of diversity among individual beliefs as well as diversity among associations and communities with various beliefs.[1] Religions need a sphere of legitimate autonomy, which is the collective expression of individual religious freedom (Art. 18(1) of the ICCPR); religious autonomy means for religious organizations what religious freedom means for individuals. Freedom of religion or belief therefore entails respect for the autonomy of religious institutions, primarily in three main areas of matters left exclusively to the groups, including the inner domain of faith, doctrine and polity; the core ministry; and the core administration.[2] This corresponds in many respects to the OSCE commitments recorded in the 1989 Vienna Concluding Document.
Religious Autonomy and Gender Equality
There are three dimensions of various links between gender equality and religious autonomy that are relevant to my arguments.
- Doctrine and traditions. Religious groups exist as legitimate entities that are entitled to internal institutional structures in accordance with their own doctrinal principles. They are called to present their own conception of the world to public opinion so that they can contribute to the marketplace of ideas that is essential for democratic societies. Gender theory—a possible, influential but not unique way to interpret gender differences and relationships between sexes. For example, in the field of solidarity between sexes and between generations, Christian churches have contributed the concept of complementarity and co-responsibility between men and women.. [3]
- Internal organization. As the UN Special Rapporteur pointed out in 2013, for many religious or belief communities, institutional questions directly or indirectly derive from the tenets of their faiths, such as the appointment of religious leaders or the rules governing monastic life. It follows that the State must generally respect the autonomy of religious institutions (2013 Report, para. 57, 59). Even so, religious groups should be encouraged to reflect on the opportunity to guarantee equal participation of men and women in those organs in which it is possible under their beliefs and traditions.
- Non-religious relationships inside religious organizations are not a direct part of religious autonomy, and they should be subject to state policies and laws on gender equality.
The fact that religious organizations have internal freedom does not mean that they have no limits. Harmful practices such as female genital mutilation, forced marriage, ‘honour’ killings, enforced ritual prostitution, or denying girls their rights to education cannot be defended in the name of religious autonomy, as the 2020 Report highlights (para. 41). These situations must allow for restricting the freedom to manifest one’s religion or belief. However, restrictions on religious autonomy cannot be legitimate unless they meet all the criteria prescribed for limitations in Art. 18(3) of the ICCPR: limitations must be legally prescribed, and they must be clearly needed to pursue the protection of “public safety, order, health, or morals or the fundamental rights and freedoms of others.”
What is Problematic in the 2020 Report?
I see at least two critical points regarding religious autonomy in the 2020 Report.
The first point relates to limitations to religious autonomy in the name of gender equality. The reasonable assumption that promoting gender equality constitutes a legitimate purpose is not enough to automatically justify every restriction imposed on religious autonomy; such restrictions must also have a legal basis, and the state has to demonstrate that less restrictive means are not available (2013 Report, para. 31). With respect to this, the 2020 Report seems too vague and imprecise when it affirms that religious institutions should “be exempted from complying with government regulations where doing so would not inordinately discriminate against others on the basis of gender” (para. 49). However, conflicts between freedom of religion or belief and gender equality sometimes may rest on mere conjecture, and states will violate international law provisions on religious freedom if they impose restrictive measures beyond the confines of Art. 18(3) of the ICCPR.
The second critical point relates to religious autonomy and religious accommodations. Increasing pluralism within our societies can make it difficult to find a common understanding of the way in which these fundamental values are expressed. On this point, the freedom of religion allows the search for reasonable compromises and the recognition of necessary spaces for conscientious objection. In this regard, the 2020 Report seems to call into question the possibility of protecting the religious interests of individuals when those interests appear to conflict with equality. In para. 44 and 45 the 2020 Report seems to challenge the right of conscientious objection by medical practitioners as potentially problematic.
New gender-sensitive developments within different religious traditions cannot be imposed by the state but must be left to believers who themselves hold the right to freedom of religion or belief (2013 Report, para. 61). Respecting the autonomy of religious communities in gender equality issues means allowing them to evolve naturally from their own values and traditions.
The 2020 Report seems to leave out the importance that society and social institutions like religions have in constituting individual identity, and in providing the conditions of meaningful individual freedom. It would be useful to bring the Report into conversation with other approaches that value sociality more heavily and that can envision a positive role for religion in helping to form communities and the identities of individuals within those communities.
Therefore, the Report seems to endorse a form of neutrality, which is potentially at odds not only with aspects of religious liberty itself, but also with long-established models of church-state relations in many countries. This point could be problematic for many religious believers since it is tantamount to promoting secularism in the name of pluralism by sanitizing public life from traces of religion.
Democracy, instead, calls for the existence of a public space where all voices can be heard, and perhaps agreements achieved.[4] There is a lot of strength and influence in religious messages, even if they are not always strictly religious. Let us think for example of the COVID-19 pandemic. While finishing this post, I am listening to the performance of Andrea Bocelli in Duomo di Milano, where a Catholic by faith performer sends a strong message of hope to everyone, believer or not, through the unmatched beauty of music.
[1] Merilin Kiviorg, ‘Religious Autonomy in the ECHR’, in Derecho y Religión IV (2009), 138-140.
[2] W. Cole Durham, Jr., ‘The Right to Autonomy in Religious Affairs: A Comparative View’ in Gerhard Robbers ed., Church Autonomy: A Comparative Survey (Peter Lang, Frankfurt am Main 2001), 686-714.
[3] B. Ferraro, ‘Theology in the context of Reciprocity and Complementarity between Men and Women’, in Lisa Sowle Cahill et al. eds.), Gender in Theology (SCM Press London 2013) 36-45.
[4] RogerTrigg, Religion in Public Life: Must Faith Be Privatized? (OUP, Oxford 2007) 148, quoted by Merilin Kiviorg, ‘Religious Autonomy in the ECHR’, 141.