Dr. Mine Yıldırım is Head of the Norwegian Helsinki Committee’s Freedom of Belief Initiative in TurkeyIssues relating to freedom of religion or belief and non-discrimination continue to provide a source for vigorous debate within parts of the human rights community.
The Report of the UN Special Rapporteur on Freedom of Religion or Belief published on 27 February 2020, which addresses gender-based violence and discrimination in the name of religion or belief, provides analyses and recommendations that drive further reflection on the various components of the right to freedom of religion or belief, including its scope, the subjects of the rights involved, and the obligations of states and other parties. While the Report claims to see “freedom of religion or belief and non-discrimination as mutually reinforcing rights,” this is not consistently the case. The Report rightly emphasizes that the right to freedom of religion or belief belongs to everyone, including men, women, and LGBT+ individuals, and that certain acts cannot be protected as manifestations of religion or belief and therefore must be restricted. However, as I indicate below, a more nuanced conception of autonomy and “collectivities” exists that the Report could have adopted to capitalize on the synergies between the freedom of religion or belief and equality.
In order to protect against discrimination, the Report emphasizes drawing boundaries around the right to freedom of religion or belief—“legal standards that should inform States’ responses to these issues”—and “identifies initiatives to ensure that exercise of the right to manifest religion or belief does not impede” the rights to equality and non-discrimination. As the Report puts it, the Special Rapporteur’s predecessors “devoted attention to the issue of gender-specific human rights abuses with a relationship to the exercise of religious or other beliefs.” In contrast, this Report centers on “different situations in which gender-based violence and discrimination grounded in religious justifications persist” (para 9).
On the surface, it may seem extraordinary that this Report, published by a Special Rapporteur who is mandated to promote a certain right (here the right to freedom of religion or belief), focus, first of all, on the limits of that same right. However, if the right to freedom of religion or belief is utilized to justify human rights violations—as the Report demonstrates is often the case— the UN Special Rapporteur on Freedom of Religion or Belief would be in a good position to systematically address the legal questions that arise.
From the perspective of international human rights, it is important to start with two rules. First, every individual (including women, men, LGBT+ persons, and children) has human rights, including the freedom of religion or belief. Second, all infringements on human rights must be justified in order to be permissible; when restrictions on human rights are scrutinized, provisions related to restrictions need to be applied to both states and religious or belief groups, if they have regulatory powers.
The Report refers to harmful practices, “including female genital mutilation, dowry killings, rape, polygamy, early and enforced marriage, beatings, coercive gender re-assignment surgery, and so-called ‘honour’ crimes.” Especially alarming for the Special Rapporteur is that those “who engage in them ‘justify’ such acts on the grounds that they are permitted or required by religious beliefs.” Rightly, the Report highlights the clear obligation on states “to prohibit such practices in law and to ensure that perpetrators of gender-based violence, including violence perpetrated by individuals claiming a religious ‘justification’ for their actions, are held accountable and their victims provided with redress” (para. 41). Clearly the urgency to implement state obligations in this category cannot be overemphasized, and it is hoped that publication of the Report will lead to formalizing a set of concrete steps to follow upon implementation.
With regard to “lesser infringements,”[1] or certain forms of gender-based discrimination that do not amount to violence or the incitement of violence within religious institutions and communities, state obligations to ensure both equality and freedom of religion or belief are not exactly clear in the Report. Although the Report provides a picture of the complexity of the dynamics related to “dissent/ers” within religious or belief communities in paragraphs 46-53, it does not provide clear standards. States are directed to be “clear-eyed about the root causes of gender equality and intentional about the multi-level, transformational approaches” necessary to “solve” such a complex problem (see para. 53). This category needs more work in order to move towards more clarity and understanding about what standards are required.
A critical aspect of the Report is that it reflects a narrow conception of autonomy, namely institutional autonomy, but autonomy may be more than institutional for religious or belief communities, and the scope of a group’s autonomy is largely determined by the scope of the doctrines and traditions of particular religious or belief groups.[2] Autonomy may be manifested in spheres beyond institutional boundaries or specifics like the appointment of religious or belief leaders, such as the autonomy of informal groups of believers within a larger religious or belief community that has legal entity status. Therefore, the Report’s reference to solely institutional autonomy may trivialize protecting the collective dimension of freedom of religion or belief, which could also be utilized for protection of acts of groups that are critical of actions that the Special Rapporteur problematizes. This approach may also lead to losing sight of the implications of human rights obligations beyond religious or belief institutions, especially for groups that do not have formal entity status or non-religious institutions vis-à-vis believers.
Another important consideration relates to the diversity of “collectivities” that constitute the subject of human rights, including the right to freedom of religion or belief, which the Report could have capitalized. The autonomy rights protected within the scope of freedom of religion or belief encompass the rights of diverse competing groups within a religious or belief community. Thus, the strict framework purported by the Report, of individuals vis-à-vis a religious/belief institution or vis-à-vis the state, would inevitably also miss the opportunity to capitalize on the collective dimension of freedom of religion or belief when resolving the issues at stake. Though individuals and religious institutions are obvious rights-holders, there are other “collectivities,” such as groups that have not formalized their existence by acquiring a legal personality, that partially diverge from the traditional positions or practices of a given religious or belief community. While the Special Rapporteur reiterates that “the right to freedom of religion or belief belongs to individuals, not religions” in paragraph 49, this should not cause one to lose sight of either the collective dimension of freedom of religion or belief and the fact that individual rights have a collective dimension. Then, salient related questions to be considered are “whose autonomy?” and “who constitutes the religious or belief community?” Addressing these questions would help to tackle issues related to dissenting or competing interests.
The UN Special Rapporteur’s Report is a must-read for everyone, especially those invested in freedom of religion or belief and equality. However, it also demonstrates that more discussions are needed on how to tackle the interactions between religion, religious freedom, and equality, as well as the implementation of applicable international human rights standards, in order to fully benefit from synergies and address conflict. Human-rights-based approaches and assertions, in addition to findings related to testing these in reality, are likely to advance our conceptions.
[1] Frances Raday, “Culture, Religion, and Gender,” International Journal of Constitutional Law 1:4 (2003): 710.
[2] Mine Yildirim, The Collective Dimension of Freedom of Religion or Belief (Routledge, 2017), 80.