Thiago Alves Pinto is Director of Studies in Theology and Religion and a department lecturer in Legal Studies in the Department for Continuing Studies, University of Oxford.
On 7 June 2023, the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (hereinafter Independent Expert) published his highly anticipated/feared report on freedom of religion or belief, and freedom from violence and discrimination based on sexual orientation and gender identity. It is safe to say that, given the subject, the report will not please everyone, but like most international decisions on the topic (including Eweida and Others v. The United Kingdom, Bayev and Other v. Russia, and Pavez Pavez v. Chile), the report is legally sound and in line with international human rights law standards. Unfortunately, the topic itself is considered by many as inherently “controversial,” an attitude that naturally impoverishes rational discussion on the subject. Still, while the legal arguments presented by the Independent Expert are not controversial, entrenched ideologies try to keep this debate at a stalemate.
The report begins by acknowledging the universality, indivisibility, and interdependency of human rights (para. 1). These characteristics echo the often-quoted dictum of the Vienna Declaration and Programme of Action: “All human rights are universal, indivisible and interdependent and interrelated.” They also set the tone of the introductory paragraph and the report as a whole, as the Independent Expert exemplifies:
Freedom of thought, conscience and religion or belief (FoRB) is a fundamental part of that structure, as are the rights to non-discrimination and equality before the law, the absolute prohibition of torture and other cruel, inhuman, or degrading treatment or punishment, the right to privacy, the right to freedom of expression, the right to health, and all other rights on the basis of which lesbian, gay, bisexual, trans and other gender diverse (LGBT) persons have a right to a life free from violence and discrimination (para. 1).
In the introductory section, the Independent Expert also acknowledges the vital significance of the rights in question for the identity of human beings (para. 2) and highlights that “the resolution that created the mandate [of the Independent Expert] recognizes the importance of respecting religious value systems” (para. 3). He notes that 26 States and 99 non-State actors submitted inputs that were taken into consideration during the draft of the report, which demonstrates broad engagement with various individuals and groups (para. 4). The Independent Expert further explains basic ideas regarding freedom of religion or belief, which are largely accepted by human rights practitioners, such as the fact that this right aims to protect everyone (believers or not) and that it protects persons rather than religions (paras. 5 and 7). Finally, the Independent Expert addresses the elephant in the room: “religion and the human rights of LGBT persons are often placed in antagonistic positions in social and political discourse, feeding the contention that there is an inherent conflict between FoRB and the human rights of LGBT individuals” (para. 6). Obviously, that is not how the discussion should be framed; after all, human rights are “universal, indivisible and interdependent and interrelated.”
While the rights mentioned above are not inherently contradictory, they may clash in some circumstances. This is uncommon but not unique within human rights. For example, in defamation claims, one’s right to private life might conflict with someone else’s right to freedom of expression, thus requiring certain legal limitations on both rights. International human rights law similarly recognizes limitations. As the Independent Expert points out in paragraphs 11 and 12, the prohibition of abuse/destruction of rights is included in human rights documents (Article 5(1) of the ICCPR), and the right to manifest freedom of religion or belief can—in certain cases—be limited to protect the rights of others (Article 18(3) of the ICCPR).
So what are the main points of contention vis-à-vis freedom of religion or belief and LGBT+ rights? Those received by the Independent Expert should be familiar to anyone working in this field: (a) the denial that LGBT+ persons exist in certain contexts; (b) the claim that LGBT+ persons are requesting special protections or new rights, which should not prevail against traditional rights such as freedom of religion or belief; and (c) the notion that traditional, religious, and national values are more important than the rights of LGBT+ persons (para. 9). These contentions are primarily political or religious, and even in cases where they resemble a legal critique, “these positions are not supported by international human rights law” (para. 10). To be clear, human rights law, like any field of law, requires interpretation. However, certain rules apply and certain parameters must be followed in interpreting human rights treaties. This is not merely the opinion of the Independent Expert, or mine for that matter, but the consolidated legal understanding of how treaties should be interpreted.
A clear example of how treaties should be interpreted is provided by the Independent Expert when addressing religious autonomy (paras 13–15). The autonomy of religious organisations is not directly mentioned in international human rights treaties, but it is interpreted as a fundamental requisite for freedom of religion or belief to be fully exercised. People would not say that this is a “new” right merely because it is not mentioned in international treaties. On the contrary, this right is inherently connected to freedom or religion or belief and enables it to flourish. Nevertheless, this autonomy “can result in women, LGBT persons and members of religious and belief minorities being excluded from aspects of confessional life” (para. 14). The Independent Expert does not endorse such exclusionary views but accepts that autonomy is an important aspect of freedom of religion or belief. In other words, his interpretation does not aim to destroy the rights of people he disagrees with; however, he notes the negative impacts that such attitudes have on those who wish to be a part of a community but are not accepted for who they are.
The fact that the Independent Expert’s report is grounded in international human rights law does not make it immune to legal criticism. The sections concerning violence against LGBT+ persons and direct discrimination (paras 16–28 and 31–38, respectively) are fairly straightforward as they relate to State obligations to protect individuals from such actions. On the other hand, Section III.E on indirect discrimination (paras 39–49)—which includes inequality in family law, religious exemptions, and conscientious objection—is more open for interpretation, primarily because the law is evolving in these areas, and the issues can be much more complex and engage the rights of others. Acknowledging that this area is fluid and that there is more scope for diverse interpretations would be helpful. However, one needs to take into consideration the format of the document. This is not an academic article. It is a report where the Independent Expert must acknowledge several cases and communications received, while observing a strict word count imposed by the UN.
That said, the Independent Expert could have better demarcated issues that are settled in international human rights law (such as the prohibition of violence and coercion) and those that are still evolving (such as same-sex marriage). In other words, he could have made a clear distinction between where the law is and where, in his opinion, it should be. This differentiation may be recognized by those with more expertise in the field but might not be immediately apparent to those unaccustomed to legal terminology. For example, when addressing questions regarding religious doctrines that frame homosexuality as sinful, the Independent Expert notes that “denunciations” and condemnatory discourse can lead LGBT+ persons to experience “significant harm, exile from communities, emotional distress and suicidality, or cruel, inhuman, or degrading treatment or punishment” (para. 25). Only someone in complete denial would not admit to these facts. However, exile from communities and emotional distress are problematic but not in itself human rights violations. Even some LGBT+ persons acknowledge that although religious messages can be hurtful, they still choose to be part of religious communities . By contrast, cruel, inhuman, or degrading treatment, including “incitement to discrimination and violence,” are human rights violations. This complexity is acknowledged in paragraph 27, and paragraph 28 invokes the Rabat Plan of Action as a helpful guide to distinguish speech that incites hatred and speech that does not. Thus, while human rights standards are included in the text, and the opinions of the Independent Expert are in line with them, further clarity on legal requirements could be beneficial.
The final substantive section of the report, and arguably the best, describes the positive engagement of many belief communities, religious or not, with LGBT+ persons (paras 50–67). This does not mean that religious communities that do not want to engage with these issues do not have the right to freedom of religion or belief, or that they are violating human rights. These examples simply demonstrate that freedom of religion or belief can be used to protect LGBT+ persons to live their lives fully and without fear. The first word of Article 18 of the ICCPR on freedom of religion or belief is “Everyone.” Thus, to exclude LGBT+ persons from the enjoyment of this right is inherently incompatible with this right. Viewed in light of these norms, it becomes clear that the antagonism between freedom of religion or belief and LGBT+ rights is manufactured and exacerbated by people who are not interested in human rights but in distinct agendas.
In sum, despite criticisms, the Independent Expert’s report is thoroughly grounded in international human rights law, and it provides harrowing examples of violence and discrimination against LGBT+ persons, as well as positive examples of freedom of religion and LGBT+ rights being exercised in mutually reinforcing ways. Criticism of the report has tended to come from groups that use the language of human rights as an excuse to advance their individual political agendas, which aim to benefit specific groups rather than protect human rights for everyone. The human rights field is, unfortunately, rife with such hypocritical agendas. However, that makes the work of the Independent Expert, and the organizations that contributed positively to this report, much more commendable.
 Heiner Bielefeldt, Nazila Ghanea & Michael Wiener, Freedom of Religion or Belief: An International Law Commentary 493 (Oxford U. Press 2017).
 See e.g., Jayeel Cornelio & Robbin Dagle, Contesting Unfreedom: To Be Queer and Christian in the Philippines, 20 Rev. Faith & Int’l Affairs 23, 23–39 (2022).