Montserrat Gas-Aixendri is a full professor of law and religion at Universitat Internacional de Catalunya (Barcelona, Spain).
The 2023 Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity  examines the intersection between freedom of thought, conscience, and religion or belief and protection from violence and discrimination based on sexual orientation and gender identity. The mandate recognizes the importance of respecting religious value systems and demonstrates a commendable commitment to safeguarding religious freedom for everyone, including individuals with diverse sexual orientations and gender identities.
As W. Cole Durham, Jr., points out, the conflicts arising from competing claims of freedom of religion or belief (FoRB) and sexual orientation and gender identity (SOGI) have been key issues in the ongoing “culture wars” for quite some time. Dealing with this clash in a thematic report for the United Nations requires careful judgment and equilibrium.
The report observes that, under specific circumstances, the state is obligated to forbid the promotion of animosity toward LGBT people where it “constitutes incitement to discrimination or violence.” Certain groups advocate enacting legal prohibitions against such actions, even when expressed within religious frameworks; others urge prudence in imposing constraints on speech, as such measures could potentially lead to censorship and unwarranted curtailments of religious freedom and beliefs, which might disproportionately affect marginalized communities. The mandate rightly asserts its alignment with these concerns, pointing out “a need to protect vulnerable groups against hate speech and to be cautious of overly broad legislation that risks pitting various groups . . . against each other in a free-speech race to the bottom” (para. 27).
How to Recognize Religious Hate Speech?
Religious expression is protected by the right to religious freedom (both personal and institutional, in the case of religious ministers and authorized personnel) and the right to freedom of religious opinion and expression (which includes the right to manifest and teach doctrine). Freedom of expression is not absolute and is subject to limitations that arise from the protection of other legal interests. The European Court of Human Rights (ECtHR) distinguishes between hate speech and offensive speech—that is, between criticism and gratuitous offense, the latter being aligned with hate speech. See Handyside v. the United Kingdom (ECtHR 1976).
As the report reminds us, it is helpful to consider some criteria to distinguish between hate speech and protected discourse:
- Freedom of expression entails a duty to avoid gratuitously offensive expressions, that is, statements made solely to offend without contributing to public debate or social progress. See Klein v. Slovakia (ECtHR 2007).
- Discriminatory intent is an essential element of hate speech. The context in which statements are made is significant in determining whether there is genuine intent to propagate ideas that incite hatred or whether the aim is to inform the public about a matter of general interest, in which case the speech would be protected by Article 10 of the European Convention of Human Rights. See Gündüz v. Turkey (ECtHR 2004); Kutlular v. Turkey (ECtHR 2008).
- It is also important to differentiate between “speech against ideas” and “discourse against individuals or groups” .
- As the report notes, soft law such as the six-part test of the Rabat Plan of Action (2012) and seven-part test from the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression(2012) can be useful.
In addition, we must distinguish between offensive speech and hate speech. The defining feature of hate speech, as distinct from other forms of offensive speech, is its capacity to perpetuate prejudice, marginalization, and discrimination. This perpetuation of harm is what makes hate speech uniquely damaging. It cannot be decided a priori who the vulnerable party is. As Matthew Parris points out, some groups may be so weak as to need the law’s protection from hateful speech, but today we cannot take for granted that LGBT people are always among them.
Disagreeing is Not Discriminating
The report expresses concern about “interpretations of religious doctrines that place homosexuality and gender nonconformity within a discourse of immorality and sin” (para. 25). However, religions condemn sins of various kinds (not solely pertaining to matters of sexuality) that could potentially discriminate against all those deemed “sinful groups” (the ungodly, the corrupt, the lazy, adulterers, etc.).
According to the belief-action distinction, all people are entitled to hold and express their view on sexual behavior. However, nobody is entitled to act in a discriminatory manner . The collision between religious expression and laws against “homophobic hate speech” presents a challenge to the human rights framework founded on principles of tolerance and pluralism. Just as the criminalization of blasphemy is difficult to reconcile with liberal culture, so is the attempt to elevate certain views on sexuality or the constructions and deconstructions of gender to that status.
As Lord Walker remarked in Regina v. Secretary of State for Education and Employment and Others, “in matters of human rights the court should not show liberal tolerance only to tolerant liberals” (para. 60, UKHL 2005). In fact, analysis of the most recent jurisprudence reveals that the overwhelming majority of cases brought before judicial bodies against religious actors have resulted in acquittal, considering that they do not contain an affront to LGBT people, involve incitement to discriminate against them based on their sexual orientation, or undermine the principle of equality. At most, they are legitimate expressions of dissent from a certain “new orthodoxy” on sexual orientation and gender identity within the bounds of civil public debate in a liberal democracy .
The discourse on gender identity should be open to debate, as it stems from the ideological development of feminisms. There is no single perspective, but as time goes by new discourses emerge, some more radical while others may seem to regress toward countercultural approaches.
A Healthy Pluralism Needs Balance and Respect
As the Institute for the Analysis of Religious, Cultural and Ethical Freedom and Identity (LIRCE) points out in its submission to the UN Independent Expert, the way to reduce tensions in a polarized cultural context and uphold a healthy pluralism is “not to affirm the predominance . . . of one freedom over the other but rather to look honestly for ways that the freedom of each party is respected without damaging the other party’s freedom.” Conflicts in this area may sometimes rest on mere conjectures, and states would violate religious freedom if they imposed restrictive measures beyond the confines of Article 18.3 of the International Covenant on Civil and Political Rights. Therefore, the reasonable assumption that promoting gender identity rights always constitutes a legitimate purpose does not in itself suffice to justify restrictions. Sometimes the label “homophobic” could be used as part of a strategy of intimidation to prevent genuine debate and diminish dissenters. For that reason, restrictions on free speech must have a legal basis, and governments must demonstrate that less restrictive means are not available.
When two identity-related claims collide with one another, the only way to sustain an inclusive and pluralistic society is to find a compromise. More efforts should be made to harmonize SOGI and FoRB rights on the basis of the universality, indivisibility, and interdependence of human rights, which must be interpreted on an equal footing through the contextualized balancing of clashing interests .
The more pluralism and diversity are experienced, the more apparent the need becomes for learning to civilize concomitant disagreements by according one another a basic respect, which should guide the way we deal with on-going disagreements, competitions, and conflicts. In the long run, if duly managed, protecting both SOGI and FoRB rights should contribute to creating a culture of mutual respect instead of mutual distancing.
Religious groups should promote respectful discourse, avoiding gratuitous insults. Criticism is legitimate if aimed at contributing to social debate and increasing citizen participation in a constructive manner, rather than seeking to destructively discredit, mock, offend, or ridicule. References to gender identity issues should be clearly connected to the moral doctrine or teachings being conveyed. LGBT groups similarly should avoid gratuitous mockery and insults toward religious morals and beliefs. The existence of groups like Sisters of Perpetual Indulgence (a protest and street performance organization that uses drag and religious imagery to satirize issues of sex, gender, and morality) could be an example of what, in my view, fails to help the cause.
Any purported neutrality that makes heterogeneity invisible actually becomes an enemy of social justice because it makes it harder to integrate the plurality of identities. Being an Independent Expert and being neutral are two different things. It would have been desirable for the report to include a more balanced approach in its drafting. This would have benefited the seriousness and credibility of the alleged findings.
 At the time of this post’s publication, only the advance unedited version of the Independent Expert’s report had been released: Victor Madrigal-Borloz (Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity), Freedom of Religion or Belief, and Freedom from Violence and Discrimination Based on Sexual Orientation and Gender Identity, U.N. Doc. A/HRC/53/37 (23 June 2023).
 Francisca Pérez-Madrid, Consideraciones sobre el hate preaching, in Discurso de Odio y Creencias 157, 157–182 (Francisca Pérez-Madrid ed., 2022).
 Ian Leigh, Homophobic Speech, Equality Denial, and Religious Expression, in Extreme Speech and Democracy 375, 375–399 (Ivan Hare & James Weinstein eds., 2009), https://doi.org/10.1093/acprof:oso/9780199548781.003.0020.
 See Vienna Declaration and Programme of Action (25 June 1993).