In preparation for his newly released report, UN Special Rapporteur on Freedom of Religion or Belief, Dr. Ahmed Shaheed, convened a series of regional workshops to discuss strategies to advance the human rights of women and Sexual Orientation and Gender Identity (SOGI) minorities while also protecting the right to freedom of religion or belief. Equality Now attorney Kate Kelly helped facilitate the workshops in Uruguay and Argentina in May 2019 and participated in Geneva in September 2019 and New York in October, as well. Equality Now’s Dima Dabbous facilitated the workshop on the 10-11 June 2019 in Tunis, Tunisia, as well as in Geneva.
The convenings were comprised of UN actors, as well as civil society, faith-or-belief-based actors and other stakeholders. Participants engaged in robust discussion and submitted information about laws, policies, and activities affecting the right to freedom of religion or belief for women, girls and SOGI minorities, as well as information about the intersection of freedom of religion or belief and other rights to the Rapporteur.
Convenings in the Americas
Countries in the Americas have been experiencing an ongoing process of secularization for decades. However, religious institutions and rhetoric still permeate the political discourse, particularly when it comes to issues of gender and sexual orientation. The convenings in Uruguay and Argentina analyzed what is happening in the region and how policies are impacted. In some places, religious precepts are being passed as outright laws that violate the rights of women and SOGI minorities. In others, religious groups and individuals are using their right to freedom of religion to impede the basic rights of others. This is becoming an increasing challenge for groups and organizations that work on protecting women’s rights and the rights of SOGI minorities. This clash is not between “religion” and “gender equality” but between practices that perpetuate discrimination and the universal rights to non- discrimination.
During the convenings, there was a repeated emphasis that international conventions protect the right to freedom of religion or belief, but do not protect religions (e.g. traditions, values, identities, and truth claims). Human rights instead protect people, as individuals and in community with others. Put differently, freedom of religion, as all other human rights, applies to humans. Contrary to the rhetoric of anti-rights groups, it is important to emphasize that women’s rights and SOGI rights are not new rights, and do not conflict with the right of individuals to their beliefs.
Religious “anti-rights” groups are on the rise in the Americas. They are heavily involved in politics. Anti-rights groups act to curtail human rights protections, and use strategies that include disinformation campaigns, adoption and manipulation of the human rights language (as in the case of the right to life) and alliances between religious conservative groups to push an agenda with clear political interests that seeks to restrict the exercise of sexual and reproductive rights and SOGI rights.
The participation of fundamentalist religious groups organized in the global and regional sphere to advance an anti-law agenda and delegitimize or even attack other sectors of civil society is worrisome. These groups also fight against the very legitimacy of regional and international bodies and instruments, because they have an easier time having political control on the local level. One convening participant described it as a “conservative tsunami,” not in terms of numbers, but in terms of influence. They focus on weakening systems of rights protection, defying international tribunals (like the Inter-American Court), and taking rights standards back decades.
The use of “conscientious objection” as a tool to limit the access of LGBTQ+ people and women to public health services is of concern (in particular healthcare access for transgender people and access to abortion care). In countries that are “secular”, there are often vast differences between laws on the books that protect people from discrimination and how those laws are actually implemented.
When religious groups are seen and treated as any other civil society organization or actor, it does not take into account the extreme power differential, budgets and influence the groups may have. They may receive protections designed for minority groups when they, in fact, have enormous power and influence. In addition, the state is often reticent to act to curb discrimination on the part of religious actors because it is afraid of violating freedom of religion. Further training is needed for government officials, judges, and other legal professionals. Both use of technology and impact on economic systems of anti-rights groups are important to understand and analyze.
It was noted that religious actors are not homogeneous or monolithic. This means, of course, that not all religious groups necessarily seek to violate the human rights of women and SOGI rights. Some groups feigning religious ties actually promote policies that are more strict than any established religious doctrine and may appear local while actually having national or even foreign agendas. The influence of evangelical groups from the U.S. on policy was examined. Abortion and forced pregnancy was an issue raised many, many times, and the role of specifically the Catholic Church in the region on political discourse. Other particularly salient issues were child marriage, vaccinations, gay marriage and access to healthcare.
Special Rapporteur Shaheed stressed the need to reach out to spiritual leaders and actors and seek interfaith cooperation to complement international standards. It may have been a mistake of the human rights movement to not include religious perspectives or actors early on. Another problem that can arise is who is considered a “religious authority.” Mainstream religious groups often claim that more pro-rights groups are “not really religious” or don’t represent their official religion’s point of view. It is important to note, however, that religious groups are not governed as democracies and do not represent the voice of all adherents, some of whom may disagree with religious hierarchies or leaders on policy matters.
Convening in Tunisia
Tunisian participants acknowledged that there are advances in Tunisia in general with respect to women’s rights, but not with respect to LGBTQ+ rights, for cultural reasons. Even with respect to women, the implementation of reforms is weak, affected by weak state mechanisms, dominant patriarchal norms, lack of funding, and prevalence of traditions and conservative religious and cultural norms. For example, centers for family planning are closing down around the country. If a woman goes to the doctor seeking abortion, he will try his best to discourage her.
Participants also pointed to the issue of “conscientious objection”, used by conservative elements in order to refuse to apply the human rights of women: Some mayors refused to marry Tunisian women to non-Muslim men. However, the government did not accept their justification because a public official has the duty to execute the law of the state.
The consultation with members of NGOs defending the rights of LGBTQ+ people showed the extent to which Tunisian culture remains homophobic. Some Tunisian Imams are preaching the killing of homosexuals, and are willing to issue, at the request of some families, fatwas that allow these families to kill their homosexual children. Moreover, LGBTQ+ people have no access to justice because homosexual victims of aggression are themselves aggressed by the police or wronged by the judges and can go to prison when they complain about being aggressed (simply for being homosexuals). Virginity and anal tests that amount to torture are also being administered. Even NGOs defending the human rights of LGBTQ+ people are threatened when doing their work. Recently, the syndicate of imams filed a lawsuit against Shams, a Tunisian NGO, because it defends homosexual rights, accusing it of being “against public morality”, but lost the case.
Participants also explained how trans people are not allowed to have their ovaries removed, since only a married woman who already has a child is allowed to undergo this operation in Tunisia.
On the positive side, the struggle of LGBTQ+ people in Tunisia is now a bit more visible. But this is not enough, as long as coming out leads to physical oppression or criminalization. There is also inconsistency within the Tunisian government about LGBTQ+ rights. The Ministry of Interior claims that no anal tests are performed while the Ministry of Human Rights is promising to stop these tests.
Reactions from participants vis-à-vis using faith and faith-based organizations to protect and promote equality and freedom from discrimination for women and SOGI showed the extent to which civil society is divided in Tunisia.
On the one side, secular feminists were adamant about rejecting any religious approach to human rights, arguing that religion is used to render sacred patriarchal views, and religion cannot be a source of legislation in the region, because it has often been instrumentalized in order to discriminate against women and diminish their human rights. These secular feminists were opposed by Islamic feminists and activists who acknowledged the pervasiveness of religion and religious values in Tunisia. This group was convinced that reforming Islam is a main entry point to reform discriminatory laws, and that a progressive reading of religions will help a lot in reducing the current challenges and moving forward.
The Report and Recommendations
The report of Special Rapporteur Shaheed makes very clear that religion is used around the world to deny women and girls and SOGI minorities rights. The Special Rapporteur reiterated throughout that the right to freedom of religion or belief belongs to individuals, not religions. He emphasized that while in general States should not interfere with a community’s internal organization, the principle of institutional autonomy does not extend to State deference to harmful discriminatory gender norms. Freedom of religion does not preempt the universal principles of nondiscrimination.
The report’s conclusions are clear: “The Special Rapporteur rejects any claim that religious beliefs can be invoked as a legitimate ‘justification’ for violence or discrimination against women and girls or against people on the basis of their sexual orientation or gender identity. International law is clear that the manifestation of religion or belief may be limited by States, in full conformity with the criteria outlined in Article 18(3) ICCPR, to protect the fundamental rights of others, including the right to non-discrimination and equality, a principle upon which all human rights, including the right to freedom of religion or belief depends.” (para 70).
These findings will be a critical asset to Equality Now as we move forward with our campaign to end discrimination in family law. Religious freedom is often used as an excuse to deny women and girls equal protection under the law and to permit religious, spiritual, or cultural institutions to perpetuate gender discrimination.
The robust report contains an excellent list of groundbreaking recommendations. They are as follows:
(a) States
(i) Reaffirm that traditional, historical, religious or cultural attitudes must not be used to justify violation of human rights;[1]
(ii) Review their laws and practices and ensure that all uphold the principles of universality of human rights and respect the right to equality and non-discrimination and do not create, perpetrate, or reinforce gender-based violence, discrimination or inequalities;
(iii) Withdraw reservations to core human rights treaties citing religious considerations;
(iv) Combat all forms of violence and coercion perpetrated against women, girls and LGBT+ persons justified with reference to religious practice or belief, ensure their personal safety and liberty, and hold accountable perpetrators of such violence and ensure victims obtain redress;
(v) Repeal discriminatory laws, including those enacted with reference to religious considerations, that criminalize adultery, criminalize persons on the basis of their actual or perceived sexual orientation or gender identity or expression, that criminalize abortion in all cases, or that facilitate religious practices that violate human rights;
(vi) Ensure that legal protections for individuals to manifest their religion or belief, such as in healthcare settings, do not have the effect of denying women, girls or sexual orientation or gender identity minorities the right to non-discrimination or other rights; in all cases, States should ensure the right to physical and mental integrity as well as their right to health, including reproductive health, for women, adolescents and LGBT+ persons and effective access to reproductive health services and comprehensive sexuality education, in line with international standards;
(vii) Publicly condemn expressions of hostility against, and the perpetuation of harmful gender stereotypes of women, girls, LGBT+ persons, and human rights defenders promoting gender equality, including by religious figures or ‘justified’ with reference to religious belief; and instead express active support for gender equality;
(viii) Create a safe and enabling environment in which women, girls, LGBT+ persons, human rights defenders and all other are able to exercise the right to freedom of expression in defence of human rights, to manifest their religion or belief; and repeal laws criminalizing offences such as blasphemy or “offence to religious feelings”;
(ix) Establish and maintain educational programmes and public policies that promote gender equality and non-discrimination, developed in cooperation with women, girls and LGBT+ persons, and make appropriate financial resources available;
(x) Empower advocates for equality and non-discrimination through access to education, including equality training for teachers;
(xi) Develop human rights education and training for religious leaders; in this connection, the Special Rapporteur welcomes the #Faith4Rights toolkit recently launched by the Office of the High Commissioner for Human Rights;
(xii) Encourage private actors, both from human rights organizations and religious groups, to facilitate the realization of women’s agency within religions. By allowing all women to have a voice, including to dissent, exercising freedom of thought and conscience, individuals can achieve not only respect for one another’s human rights, but also greater understanding of where and how religious practices can diminish and curtail rights.
(xiii) Promote education about religions and freedom of religion or belief within communities of women, girls and LGBT+ persons;
(xiv) Extend invitations to UN human rights mechanisms including the Working Group on Discrimination against Women in Law and Practice Independent Expert on the Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity;
(b) Faith Leaders/Civil Society Organisations
(i) Faith leaders to publicly oppose expressions of hostility against, and negative stereotypes of, women, girls, LGBT+ persons, and human rights defenders promoting gender equality, including by faith leaders; and express solidarity with and support for women, girls and LGBT+ persons;
(ii) Civil society organizations and faith leaders to promote holistic and inclusive discussions on how practices ‘justified’ with reference to religion or belief are causing discriminatory treatment, harmful practices and sometimes life-threatening abuses, and continue campaigns focused on combating these practices.
(c) The UN human rights system
Continue to clarify international human rights law on the intersections of freedom of religion or belief and gender equality and urges the Human Rights Committee, in consultation with the CEDAW Committee and relevant UN Special Procedures, to produce a general comment on the intersections between the right to freedom of religion or belief and the right to equality and non-discrimination on the basis of gender, including in the context of private services.
Equality Now applauds this mandate holder and the UN human rights system in their continued efforts to elaborate on the intersection of these rights, with the specific concerns of marginalized groups in mind.
We are motivated to continue this dialogue with state and nonstate actors, with an eye on eliminating discriminatory laws in every country, as highlighted in our advocacy report, Words & Deeds – Holding Governments Accountable in the Beijing +25 Review Process.