Marie Juul Petersen is Senior Researcher at the Danish Institute of Human Rights.
All over the world, increasing gains related to the rights of women and LGBTIQ+ persons are met with opposition from conservative religious actors and their allies. Often, the right to freedom of religion or belief (FoRB) plays a prominent role in arguments against these rights. Governments, religious institutions, and civil society actors try to defend the right to religious freedom of some people at the expense of other people’s right to equality and nondiscrimination—not only in international fora but also at national and local levels.
Examples include bans on comprehensive sexuality education, restrictions on access to reproductive health services, gender-discriminatory family laws, harmful practices, prohibition of certain forms of sexual orientation, and the refusal of goods and services to LGBTIQ+ persons based on their gender identity or sexual orientation. In some countries, civil society actors who challenge such gender discrimination—including faith-based ones—frequently experience government restrictions, social hostilities, and harassment on the grounds that their actions are blasphemous and religiously insulting.
Underlying this are a multitude of different rationales, motivations, understandings, and—not least —misunderstandings of what FoRB entails or should entail, and there is clearly a need for a more nuanced understanding of what drives these actors. For now, however, let us focus on one thing they have in common: that they see FoRB as a powerful argument against rights related to gender and sexuality—in fact, that to uphold FoRB necessarily means restricting rights related to sexual and reproductive health (SRH) and sexual orientation and gender identity (SOGI).
This view can be challenged on several grounds.
First: FoRB does not provide blanket protection of all religious manifestations and practices. While FoRB certainly protects all sorts of beliefs and convictions, it does not protect all manifestations and practices growing out of these beliefs. Religious manifestations and practices can and should be restricted if they violate other people’s rights and freedoms. This means that, from a human rights perspective, FoRB cannot be used to defend, for instance, female genital mutilation, child marriages, menstrual isolation, coercive conversion therapy, and other harmful practices, even if they are religiously justified. Likewise, FoRB cannot be invoked to condone or excuse any form of gender-based harassment or violence. And FoRB cannot be invoked to justify laws, policies, or practices that discriminate or deny people equal legal protection on the basis of their gender or sexuality, let alone laws that criminalize certain forms of gender identity or sexual orientation.
Second, even if we set aside outright violent or harmful religious expressions, international human rights norms do not automatically prioritize protection of religious practices and manifestations over other rights claims. From a human rights perspective, all rights are equally important, and there is no inherent hierarchy of rights. In cases of tension or conflict between one person’s legitimate right to FoRB and another person’s right to sexual and reproductive health, or to nondiscrimination on the grounds of their sexual orientation or gender identity, human rights norms oblige us to carefully analyze these conflicts with a view to doing justice to all claims involved. For instance, FoRB is often used as an argument for “conscientious objection” clauses that guarantee medical staff the right to refuse participation in abortion-related services. And it is true that the human rights framework does accommodate the right to conscientious objection— but this right must be weighed against the harm that it may do to others.
For example, according to human rights standards, conscience cannot justify a refusal to perform a life-saving abortion when no other suitable alternatives exist. Also, conscientious objection must not hinder women from enjoying their legally guaranteed access to such health services. In contexts where the vast majority of medical staff refuse to carry out abortions, “conscientious objection” effectively means that women in these areas are prevented from access, as is the case in parts of Italy and Uruguay, for instance.
Another issue is sexuality education. This is sometimes met with strong opposition from parents who argue that such education goes against their religious convictions and ask for their children to be exempted from class—and FoRB does guarantee parents the right to raise their child in conformity with their own convictions. But international human rights standards also emphasize that children and young people have the right to receive comprehensive, accurate, scientifically sound, and culturally sensitive sexuality education. And FoRB does not necessarily entitle parents to withdraw children from such education—at least not if the information is conveyed in an objective and impartial manner. In fact, in the 2018 case A.R. and L.R. v. Switzerland, the European Court of Human Rights ruled against a Swiss woman who wanted her child to be exempted from sexuality education, arguing that it was in the best interest of the child to have access to information that could protect her health.
A third example turns on religious institutions and their employment practices. According to international human rights standards, religious institutions have a right to autonomy with regard to their internal affairs—for instance, in relation to the appointment of religious leaders. In this, they can be exempted from complying with government regulations regarding nondiscrimination. However, as noted by former Special Rapporteur on FoRB Ahmed Shaheed, the right to religious autonomy is not without limits. He refers to the UN Committee on Economic, Social and Cultural Rights, which has called on States to ensure that religious institutions do not discriminate against nonecclesiastical employees on grounds of sexual orientation or gender identity. In other words, while religious institutions may legitimately discriminate in their hiring or firing of religious leaders or PR directors, this right does not extend to staff with a less central role in the institution’s religious affairs, such as the accountant.
To sum up, FoRB cannot be used as a default or blanket argument against rights related to sexual and reproductive health, sexual orientation, and gender identity. In fact, FoRB may sometimes be employed as an argument for these rights, dismantling notions of an inherent clash. And that is my third—and perhaps most important—point.
FoRB is, as former UN Special Rapporteur on FoRB Heiner Bielefeldt has put it,
a norm to which liberals and conservatives, feminists and traditionalists, and all others, can refer in order to promote their various and often conflicting religious or belief-related concerns, including conflicting interests and views in the field of religious traditions and gender issues.
FoRB protects the right of all individuals to interpret and practice their religion the way they believe is true, as long as this does not violate other people’s rights and freedoms. This obviously includes the right to interpret and practice religion in a gender-sensitive manner, supportive of SRH and SOGI rights. All over the world, religious feminists, LGBTIQ+ activists, and other faith-based gender equality advocates challenge religiously conservative actors’ monopoly on FoRB, insisting on their freedom to believe and live their beliefs in a way that is consistent with—and inextricably intertwined with—principles of gender equality and nondiscrimination.
In the wake of Florida’s recent abortion ban, for instance, a U.S. rabbi filed a lawsuit arguing that the law violates religious liberty. Unitarians, Buddhists, and other progressive religious communities have actively supported the lawsuit. In Argentina, the Pentecostal pastor Gabriela Guerreros has also advocated for the right to safe abortions from a FoRB perspective: “Our bodies are sacred territory and in that [lie] our self-determination and religious freedom.” In the Philippines, the LGBTIQ+ community appealed to FoRB in their struggles for the right to same-sex marriage, supported by progressive religious voices. In Kenya, queer activists of faith challenge the discrimination and exclusion they face from their own churches, arguing that this constitutes a violation of their right to worship.
This “re-claiming” of FoRB is encouraging and can contribute in important ways to empowering individuals and groups who have historically been marginalized and discriminated against on the grounds of their gender or sexuality.
Importantly, this should not lead us to dismiss or demonize all FoRB claims of “the other side” as illegitimate or “anti-rights,” mirroring the monopolization of FoRB that we have seen in past decades.
FoRB protects everybody’s right to believe what they want, and that also includes the right to believe in traditional family values, to believe that abortion is murder, or that sexuality education is morally wrong and degenerating. That does not mean that the religious practices and manifestations growing out of these beliefs can always be fully or even partly accommodated within a human rights framework, as the examples above show. But when trying to solve the conflicts that emerge when different rights claims clash, human rights norms oblige us not to approach these as a zero-sum game but instead to do our best to find solutions that maximize protection for all .
 Bielefeldt, Heiner, and Wiener, Michael. (2020). Religious Freedom Under Scrutiny (University of Pennsylvania Press).