Captura de Tela 2023-07-15 À(s) 11.27.26

A/HRC/53/37
Advance unedited version Distr.: General

7 June 2023
Original: English
Human Rights Council

Fifty-third session
19 June–14 July 2023
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Freedom of religion or belief, and freedom from violence and

discrimination based on sexual orientation and gender identity
Report of the Independent Expert on protection against violence and

discrimination based on sexual orientation and gender identity1*, 2**
Summary
The present report is submitted to the Human Rights Council pursuant to Council
resolutions 32/2, 41/18 and 50/10. The Independent Expert on protection against violence and
discrimination based on sexual orientation and gender identity, Victor Madrigal-Borloz,
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.
Annex 1 describes activities that took place since June 2022.
1
* The present report was submitted after the deadline to allow consideration of diverse inputs.
2
** The annex to the present document is reproduced as received, in the language of submission only.
A/HRC/53/37
I. Introduction
1. For the last 75 years, universal, indivisible, and interdependent rights have given
meaning to the framework built over the Universal Declaration for Human Rights. 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.3
2. This report focuses on the spaces where freedom of thought, conscience and religion or
belief and protection from violence and discrimination based on sexual orientation and
gender identity intersect. It therefore relates to human feelings of love, intimacy, and
meaning; spiritual ecstasy and physical pleasure; inner peace and worldly belonging. In
other words, it seeks to explore fundamental conceptions about our human bonds with the
sacred and the mundane, the interaction between these powerful motors of the human
experience, and the framework created in international human rights law for their
recognition and development.
3. The Independent Expert is committed to respect for freedom of religion and belief.
Tellingly, the resolution that created the mandate recognizes the importance of respecting
religious value systems. During country visits the Independent Expert has deeply valued his
engagements with religious authorities: in Georgia, the Patriarchate of the Georgian
Orthodox Church, the Mufti of all Muslims, and the Chair of the Jewish Council; in
Mozambique, the Mufti of Nampula; in Tunis, the Catholic Archbishop, and the Chief
Rabbi; and faith-based leaders in Ukraine, the United States, and the United Kingdom. The
dialogue activities of the Independent Expert include engagements with persons of faith,
and this is a topic that is present in analysis of allegations in specific cases. These
experiences are part of the knowledge stock used for this report.
4. The report preparation also included: a literature review, with special attention to the
archive of the United Nations Special Rapporteur on FoRB;4 a call for inputs that generated
26 State submissions and 99 submissions by non-State actors, including academia, civil
society, and faith-based organizations; an expert meeting held at the Independent Expert’s
academic home, the Human Rights Program of the Harvard University Law School in
Cambridge, Massachusetts on 9 and 10 March 2023; and a public consultation in Geneva,
Switzerland on 21 March 2023. The Independent Expert is indebted to all stakeholders for
their contributions to the report.
5. Within a human-rights framework, the term “religion” does not describe a
homogeneous, static entity. Religious norm, tradition, and community are not part of a
single institution, and religion describes a multitude of dynamic, contested, and evolving
beliefs and values that inspire hope, guide action, imbue identity and help people make
meaning of their life experiences.5
6. As an unfixed paradigm, religion does not have essential inbuilt positions, and it would
make no sense to position it as inherently or predominantly pro- or anti-LGBT. And yet
religion and the human rights of LGBT persons are often placed in antagonistic positions in
3
A/HRC/35/36, paras. 20–33.
4
Special Rapporteur’s Compilation of Articles on Freedom of religion or belief and Sexuality, 2017,
https://www.ohchr.org/sites/default/files/Documents/Issues/Religion/ArticlesCompilationForbAndSex
uality.pdf.
5
Women, Religion and Peacebuilding: Illuminating the Unseen, Susan Hayward and Katherine
Marshall (eds.), USIP, 2015.
2
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social and political discourse, feeding the contention that there is an inherent conflict
between FoRB and the human rights of LGBT individuals, a fabricated narrative that
undermines the ideal of peaceful human coexistence: as put in one submission, “[a]t times,
freedom of religion or belief also has been misused as a sword rather than a shield,
privileging the individual conscience and beliefs of some at the expense of the rights of
others.”6
7. Indeed, FoRB in international human rights law is distinct from religion: it protects a
person’s freedom to possess and express beliefs, religious or not, individually or in
community with others: to shape their lives in conformity with their own convictions.7
Religious freedom is an expansive idea, “encompassing both freedom of religion and
freedom from religion”;8 and “perceived as a general right which also protects an
individual’s right to form a whole range of non-institutional and dissenting views.”9
8. The report concludes that FoRB and freedom from violence and discrimination based
on sexual orientation and gender identity are fully compatible under international human
rights law. It further demonstrates that it is the way some religious narratives are used to
justify violence and discrimination that constitutes actions contrary to the human rights of
LGBT persons; and gathers and systematizes a significant range of good and best practices
that show how FoRB is part of the framework that enables the enjoyment of the human
rights of LGBT persons.
II. Legal framework
A. Freedom from violence and discrimination based on sexual orientation

and gender identity
9. That all persons should live free from violence and discrimination based on their sexual
orientation and/or gender identity is not an idea from a particular part of the world: it is an
international standard.10 The State obligation to adopt measures to eradicate such violence
and discrimination continues nevertheless to face opposition. Governments, religious
institutions, and other actors attempt to justify this opposition in global, regional, and
national fora on the grounds that diversity in sexual orientation or gender identity
contravenes certain religious tenets or sociocultural beliefs.11 One of the following three
arguments is usually deployed:
(a) LGBT persons do not exist within the jurisdiction of a State,12 or within certain
religious and belief communities;13
(b) sexual orientation and gender identity only exist subjectively in the conscience
of individuals and are not protected under international human rights law;14 in case of any
clash with a manifestation of religion or belief, it is the latter that must be protected.15 This
is particularly the case when interests promote “a ‘rebalancing’ of human rights in
accordance with ‘traditional values,’ where religious and belief freedom is repositioned as
6
Human Rights Watch, submission, p. 2.
7
A/71/269, para. 11.
8
Catholics for Choice, submission, p. 3.
9
Humanists International, submission, p. 3.
10
A/HRC/35/36, paras. 20–33.
11
A/HRC/43/48.
12
A/HRC/38/43, paras. 62–65.
13
Coalition for Child Protection (Macedonia), submission, p. 3.
14
Center for Family and Human Rights, submission; Heritage Foundation, submission.
15
C-Fam, submission, p. 2.
3
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the unalienable right to which other human rights should be ceded”:16 the defunct United
States Commission on Unalienable Rights, and the Geneva Consensus,17 are two outcomes
of this type of thinking. A corollary of this line of argumentation alleges that LGBT
persons are seeking new or special rights;18
(c) State’s human rights obligations must be calibrated against the dominant
religious and belief or cultural orthodoxies in national contexts and the right to be free from
discrimination and violence based on sexual orientation and gender identity conflicts with
national religious and belief sensibilities. Notions of “traditional values,”19 “public morals”
and “national values” are commonly used in discourses that are hostile to the human rights
of women, LGBT persons and religious and belief minorities, and often rely implicitly or
explicitly on religious and belief norms and values, also linked with patriotism and
patriarchal gender and family norms.20
10. The mandate has reviewed the robust evidentiary and theoretical bases that lead to the
conclusion that these positions are not supported by international human rights law.21
Nevertheless, the norms of interdependence and indivisibility of human rights invite careful
analysis of any perceived conflicts between rights with a view to doing justice to all claims
involved, and the analysis in this report seeks to further examine some of those arguments.
B. Right to freedom of religion or belief, sexual orientation, and gender

identity
11. Human rights are subject to an interpretation preventing “the destruction of

any of the rights and freedoms” protected in the respective legal instruments.22 Article 18 of
the ICCPR protects everyone’s freedom to “have or to adopt a religion or belief of his
choice, and freedom, either individually or in community with others and in public or
private, to manifest his religion or belief in worship, observance, practice and teaching.”
The mandate of the United Nations Special Rapporteur on freedom of religion or belief has
long described this right as being two-fold;23 a first part covering the right to hold or change
one’s thoughts, religion or belief,24 a right that is absolute and cannot be restricted by States
under any circumstances. The second part, the right to manifest one’s religion or belief
through actions, can and should be limited by States in certain circumstances, namely when
prescribed by law and “necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others.”25
12. Limitations on FoRB must be proportionate to a legitimate aim,26 “strictly
interpreted,”27 and not imposed for discriminatory purposes or applied in a discriminatory
manner;28 and the Special Rapporteur on FoRB concluded that “religious beliefs” cannot be
“invoked as a legitimate ‘justification’ for violence or discrimination on the basis of sexual
orientation or gender identity.”29 The European Union guidelines on the promotion and
16
17
2020 Geneva Consensus Declaration on Promoting Women's Health and Strengthening the Family.
18
Family Watch International, submission, p. 4; Heritage Foundation, submission, p. 1.
19
A/HRC/41/45/Add.1, para. 32.
20
Coming Out, submission, p. 3.
21
A/76/152, para. 77.
22
A/HRC/43/48, para. 60. Article 30 of the Universal Declaration of Human Rights; Article 5 of the
ICCPR.
23
A/HRC/43/48, para. 59.
24
CCPR/C/GC/34, para. 9.
25
CCPR/C/21/Rev.1/Add.4, para. 8.
26
Human Rights Committee, Yaker v. France, 2018, para. 8.8.
27
28
Human Rights Committee, Hebbadj v. France, 2022, para. 7.5; Yaker v. France, para. 8.5.
29
A/HRC/43/48, para. 69.
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protection of freedom of religion or belief similarly rejected all FoRB-based justifications

of violence and discrimination, and further recognized that: “States have a duty to protect
all persons within their jurisdiction from direct and indirect discrimination on grounds of
religion or belief,” including “on the basis of their sexual orientation or gender identity”.30
C. Institutional autonomy and freedom from discrimination
13. FoRB includes the right to organize and maintain the internal affairs of religious and
belief community life without State intervention.31 States cannot seek to control religious
and belief life, and the autonomy to determine the rules for appointing leaders or for
governing monastic life, for example, grants religious and belief communities
self-understanding of their norms and traditions.32
14. The European Court of Human Rights has noted that the right to freedom of religion
and the principle of autonomy entail that the “State is prohibited from obliging a religious
community from admitting new members or excluding existing ones,”33 a principle that has
also been reaffirmed in domestic jurisdictions. For example, the United States Supreme
Court has established that there are some areas of religious practice that are squarely within
the discretion of a religious faith and not subject to State control.34 As is widely known, the
principle of autonomy can result in women, LGBT persons and members of religious and
belief minorities being excluded from aspects of confessional life, or employment in some
limited cases such as the case of religious schools.
15. Exclusionary views can have severe and negative consequences for the personhood,
dignity, and spirituality of LGBT persons, who are often marginalized, stigmatized and
excluded from religious and belief communities simply because of who they are.35 The
Special Rapporteur on FoRB, in noting this reality, asserted that States have a duty to create
“an enabling environment” where dissenters, dissidents, progressive reformers and activists
are protected against violence and harmful practices from the larger religious community,
so that they can assert their agency and participate in religious discourse on an equal
footing.36
III. Violence and discrimination in the name of religion or belief
16. State and non-State actors perpetrate violence against persons based on their actual or
perceived sexual orientation or gender identity invoking religion or belief. On 17 May
2013, a small group of members of the LGBT community and their allies, who were
commemorating the International Day against Homophobia, Transphobia and Biphobia in
Tbilisi, Georgia, was attacked by a crowd of thousands. The police failed to control the
situation and the small group that had sought refuge in a building surrounded by the crowd
30
EU Guidelines (24 June 2013), e.g. at paras. 26, 28, 30, 35, 36:
https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/137585.pdf. The
European Parliament reaffirmed those standards in its Resolution of 15 January 2019 on the EU
Guidelines and the mandate of the EU Special Envoy on the promotion of FoRB outside the EU
(2018/2155(INI)): https://www.europarl.europa.eu/doceo/document/TA-8-20190013_EN.html.
31
A/69/261, para. 41.
32
Human Rights Committee, Malakhovsky and Pikul v. Belarus, 2005.
33
European Court of Human Rights, Sindicatul ‘Păstorul cel Bun’ v. Romania, 2013, para. 137;
Svyato-Mykhaylovska Parafiya v. Ukraine, 2007, para. 146; Miroļubovs and Others v. Latvia, 2009,
para. 80(d).
34
Supreme Court of the United States, Masterpiece Cakeshop, LTD. et al. v. Colorado Civil Rights
Commission et al., 2018, at 10. Cited in Human Rights Watch, submission, p. 4.
35
A/HRC/43/48/Add.2, para. 52.
36
A/HRC/43/48, para. 74.
5
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was subjected to terror and assault, suffering physical and psychological harm. Clerics from
the Orthodox Church and members of extremist groups were involved in inciting the
violence. This case, corroborated by the Independent Expert during his country visit to
Georgia,37 is an example of how discrimination and violence perpetrated by religious and
belief leaders and State agents may be (and often are) intimately intertwined and feed one
another.
A. Violence
17. In countries with laws licensing punishment of consensual same-sex activity with death,
the relevant authorities often base this denial of rights and personhood on the State’s
interpretation of religious law, culture and values.38 Most recently, Uganda’s Speaker of
Parliament officially claimed that their “anti-homosexuality” law, which includes the death
penalty for so-called “serial homosexuality,”39 aims to “protect our [Christian] church
culture; the legal, religious and traditional family values of Ugandans.”40
18. State-sponsored violence grounded in interpretations of religion or belief also takes less
explicit forms such as the denial of reproductive rights,41 State-coerced practices of
conversion,42 and forced gender reassignment surgeries.43 Laws which punish
homosexuality and gender non-conformity also invariably generate violence elsewhere in
the State’s infrastructure: for example in detention settings44 and in healthcare settings.45 It
is reported that members of the armed forces in Iraq engage in violence against LGBT
people with impunity; government officials consider these actions to be efforts by the
abusers to protect religious or moral traditions.46
19. Some of the most pernicious “religiously justified” violence based on SOGI is carried
out by non-State actors. This includes bias-motivated attacks and other hate crimes by
mobs, vigilante groups, individuals, family members, religious and belief leaders and
organizations who allege that their religious beliefs permit and even require violence
against LGBT persons. Cases of so-called “corrective” rape of lesbian, bisexual and queer
women and girls facilitated by religious and belief leaders and adherents have been widely
reported, including in Ghana,47 Jamaica,48 and Spain.49 The forced heterosexual marriages of
lesbian, bisexual and queer women emanating from community beliefs that heterosexual
37
A/HRC/41/45/Add.1, para. 57.
38
Iran, Saudia Arabia, Somalia, states in Northern Nigeria, Afghanistan, Brunei, Mauritania, Pakistan,
Yemen, Qatar, United Arab Emirates. United States Commission on International Religious Freedom,
“Shari’a and LGBTI Persons”, 2021:
https://www.uscirf.gov/sites/default/files/2021-03/2021%20Factsheet%20-%20Sharia%20and%20LG
BTI.pdf; A/HRC/35/23, para. 45; A/71/372, para. 101–102.
39
“Uganda: UN experts condemn egregious anti-LGBT legislation”, OHCHR, 29 March 2023:
https://www.ohchr.org/en/press-releases/2023/03/uganda-un-experts-condemn-egregious-anti-lgbt-leg
islation.
40
“Uganda parliament passes bill criminalizing identifying as LGBTQ, imposes death penalty for some
offenses”, CNN, 22 March 2023:
https://www.cnn.com/2023/03/21/africa/uganda-lgbtq-law-passes-intl/index.html.
41
OL IDN 2/2022.
42
A/HRC/44/53, para 25
43
A/HRC/57/50, para. 29.
44
A/HRC/40/60, para 54.
45
A/HRC/50/27, paras. 10, 29.
46
Human Rights Watch, ‘Everyone Wants Me Dead’, 23 March 2022:
https://www.hrw.org/report/2022/03/23/everyone-wants-me-dead/killings-abductions-torture-and-sex
ual-violence-against#_ftn1.
47
Human Rights Watch, ‘No Choice but to Deny Who I Am’, 8 January 2018:
https://www.hrw.org/report/2018/01/08/no-choice-deny-who-i-am/violence-and-discrimination-agains
t-lgbt-people-ghana#13932d.
48
Inter-American Commission on Human Rights, Violence Against LGBTI Persons in Americas, para.
173: https://www.oas.org/en/iachr/reports/pdfs/violencelgbtipersons.pdf.
49
NET (Spain), submission, pp. 4–5.
6
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marriage is a religious or spiritual directive is another chilling example.50 In particular, the

mandate’s research into so-called “conversion therapy” – which sometimes reaches the
level of torture – revealed that the main promoters and perpetrators are often religious or
belief leaders and institutions, with the support of, or instigation by, family members.51
20. Submissions highlighted that State-sanctioned violence and discrimination against
LGBT people normalizes non-State human rights abuses.52 Abusers routinely target persons
who openly dissent from dominant religious teachings by advancing interpretations that do
not center heteronormativity.
21. When perpetrators are non-State actors, States must still act with due diligence to
prevent violence against LGBT people, fully investigate it when it occurs, prosecute and
punish the perpetrators, and repair the damage inflicted on the victims.53 In its General
Comment on the right to life, the United Nations Human Rights Committee made this duty
explicit, outlining that States must take “special measures of protection towards persons
whose lives have been placed at particular risk because pre-existing patterns of violence,
including […] lesbian, gay, bisexual, transgender and intersex (LGBTI) persons.”54
B. Hate speech and incitement
22. Freedom of opinion and expression is enshrined in Article 19 of the ICCPR. Like
Article 18, it also stipulates that the right may be subject to certain restrictions, when
provided by law and necessary for respect of the rights and reputation of others, or of
public health or morals. These provisions are given context by Article 20 of the Covenant,
which prohibits “racial or religious hatred that constitutes incitement to discrimination,
hostility or violence.” The Human Rights Committee has established that no manifestation
of religion or belief ought to propagate war, or incite national, religious, or racial hatred,
discrimination, or violence.55
23. Many submissions raised concerns about religious or belief leaders actively fueling
disinformation and/or intolerance against LGBT persons. A common tactic is to scapegoat
LGBT people for controversies, exacerbating historical and structural patterns of exclusion.
In the height of the COVID-19 pandemic, for example, the mandate documented religious
authorities attributing the virus to retribution from God for same-sex activity in 12 States.56
24. Others posit LGBT persons as a threat to “the traditional family”57 or “the nation.”58
During his visit to Ukraine, the Independent Expert learned that religious leaders had
demanded a ban on “homosexual propaganda” under the banner of “protecting the
traditional family.”59 A related theory is that gender –that men’s and women’s roles,
behaviors, forms of expression, and attributes are constructed according to the social
50
Joint submission by NGOs Coalition for UPR-Thailand, 25 April 2021, pp. 4-5, 7:
https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=8848&file=CoverPage. Human Rights
Watch, ‘This Is Why We Became Activists’, 14 February 2023:
https://www.hrw.org/report/2023/02/14/why-we-became-activists/violence-against-lesbian-bisexual-a
nd-queer-women-and-non#ftn5.
51
A/HRC/44/53, paras. 25–33. Outright International, submission, p. 6. Promsex, submission, p. 5.
52
Campaña Nacional por un Estado laico, submission, p. 3.
53
A/HRC/29/23, para. 11.
54
55
CCPR/C/21/Rev.1/Add.4, para.7.
56
OHCHR, “Covid-19 and the Human Rights of LGBTI People”, 17 April 2020,
https://www.ohchr.org/sites/default/files/Documents/Issues/LGBT/LGBTIpeople.pdf. AL TUR
10/2020.
57
A/HRC/47/27, p. 5.
58
“The Position of the Polish Bishops’ Conference regarding LGBT+”, Konferencja Episkopatu Polski,
28 August 2020: https://episkopat.pl/the-position-of-the-polish-bishops-conference-regarding-lgbt/.
59
A/HRC/44/53/Add.1.
7
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meanings given to biological sex characteristics60 – is a dangerous “ideology.”61 In Peru,

self-declared evangelical candidates for congress who are also pastors of churches have
denied the very existence of intersex persons, often citing the Bible as a legislative source,
and supported practices of conversion as part of their electoral platform.62
25. Other submissions expressed concern about interpretations of religious doctrines that
place homosexuality and gender nonconformity within a discourse of immorality and sin,
describing the power that such discourse can have on the social acceptance of LGBT
people, particularly when propagated by religious and belief leaders. Denunciations of
LGBT people needing to be “cured” or punished leads to significant harm, exile from
communities, emotional distress and suicidality, or cruel, inhuman, or degrading treatment
or punishment.63
26. The extent to which religion can be invoked for autocratic practices and denial of basic
rights and civil liberties is also evident in some of the state legislatures seeking to enshrine
anti-trans exclusion and eliminate comprehensive sex education in the United States. At the
end of his visit to that country, the Independent Expert conveyed concerns about the misuse
of religious narratives and the deliberate exploitation of earnestly religious persons for
political purposes.64
27. Under certain circumstances, the State is obliged to prohibit the advocacy of hatred
against LGBT people where it constitutes incitement to discrimination or violence.65 Some
LGBT advocates have called for legislative bans on such acts, including when articulated in
religious contexts. Others caution against limits on speech that risk censorship, and undue
restrictions on freedom of religion or belief that could disproportionately impact minorities.
The mandate shares these concerns: there is a need to protect vulnerable groups against
hate speech and to be cautious of overly broad legislation that risks pitting “various groups
– including the very marginalized groups that it purports to benefit – against each other in a
free-speech race to the bottom.”66
28. The United Nations Rabat Plan of Action is a tool of particular importance in this
context. It articulates a test for defining restrictions on freedom of expression, incitement to
hatred, and for the application of article 20 of the ICCPR. It outlines a six-part threshold
test: (1) the social and political context, (2) status of the speaker, (3) intent to incite the
audience against a target group, (4) content and form of the speech, (5) extent of its
dissemination, and (6) likelihood of harm, including imminence.67
C. Actions seeking regression of human rights of LGBT persons
29. The concept of a “natural” order as the guiding principle of human and social existence
is also present in conservative doctrine. This conceptual foundation, propagated through
some dominant religious narratives, can restrict the full enjoyment of rights by LGBT
persons. For example, the All-Ukrainian Council of Churches and Religious Organizations
60
A/HRC/47/27, para 13.
61
Mary Anne Case, “Trans Formations in the Vatican’s War on ‘Gender Ideology’”, 2019:
https://chicagounbound.uchicago.edu/journal_articles/9669.
62
Promsex, submission, p. 3.
63
A/HRC/44/53.
64
Country Visit to the United States of America, Preliminary Observations, 29 August 2022, para. 28:
https://www.ohchr.org/sites/default/files/documents/issues/sexualorientation/iesogi/2022-08-30/IE-S
OGI-EOM-US.docx.
65
CCPR/C/GC/34, paras. 48 and 49.
66
“Hate-speech laws are no friend of minorities”, Spiked, 2 June 2020:
https://www.spiked-online.com/2020/06/02/hate-speech-laws-are-no-friend-of-minorities/.
67
Jeroen Temperman, Religious Speech, Hatred and LGBT Rights: An International Human Rights
Analysis, 2021: https://doi.org/10.1163/9789004458864.
8
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successfully opposed attempts to include sexual orientation and gender identity as protected
characteristics in anti-discrimination legislation; to ratify the Council of Europe Convention
on Preventing and Combating Violence against Women and Domestic Violence; and to
adopt a resolution cancelling the legislative ban on the adoption of children by
HIV-positive and transgender persons.68
30. An unprecedented pushback by alliances of conservative political ideologies and
religious fundamentalisms is advocating for the criminalization of homosexuality and the
denial of gender recognition in numerous States.69 These alliances rarely present themselves
as religious fundamentalist,70 but rather as human rights groups working to protect the
family and religious freedom. Striking cases can be seen in recent legislative projects in
Uganda and Ghana, where a bill was tabled by a Coalition of MPs with the support of the
National Coalition for Proper Human Sexual Rights and Family Values, a tripartite
movement that is said to include all Christian Councils, all Muslim Councils and all
Traditional Leaders in the country. The Coalition of Muslim Organizations, Ghana
(COMOG), has openly backed the bill.
D. Direct State discrimination allegedly grounded in religion and/or belief
1. Criminalization of same-sex intimacy and gender diversity

31. In total, 67 State Members of the United Nations criminalize consensual same-sex
sexual acts between adults.71 The historical causes of this criminalization can be traced to
two sources. The first is dogmatic interpretations of scripture. In 2019, for example, several
Special Procedures expressed their concern to Brunei Darussalam for the imposition of
stoning to death, whipping and amputation in connection with consensual same-sex
relations and adultery in the Syariah Penal Code Order.72 A feature of this legislation is that
the application of its penalties vary depending on if the offender is Muslim or not. In its
response, the State emphasized the preservation of its “own cultural and religious values.”73
32. Regional or provincial parliaments also appeal to religion: the mandate has noted that
regional laws in the Aceh province of Indonesia, for example, have created offenses
denominated as Islamic criminal law, additional to the national criminal law, against
same-sex acts and certain forms of gender expression, with penalties that include fines,
caning and imprisonment for 100 months.74
33. The other historical source is a legislative exercise carried out by the British Empire.75
Half of the countries that maintain criminalization are former British colonies,76 and many
among them invoke national religious values to justify the retention of these laws. This
was, for example, the case of Jamaica during the 2011 Universal Periodic Review;77 in
other cases, colonial-era legislation has morphed into norms invoking religion. One
68
A/HRC/44/53/Add.1, para. 11.
69
AWID, Rights at Risk: Time for Action – Observatory on the Universality of Rights Trends Report,
2021, 2021: https://www.awid.org/ours-2021.
70
A/HRC/34/56, paras. 24, 29.
71
A/HRC/43/48, para. 52.
72
AL BRN 1/2019.
73
Note no. 33/2018: https://spcommreports.ohchr.org.
74
IDN 1/2018. ASEAN SOGIE Caucus, submission p. 2.
75
Human Rights Watch, This Alien Legacy: The Origins of ‘Sodomy’ Laws in British Colonialism, p. 5:
https://www.hrw.org/report/2008/12/17/alien-legacy/origins-sodomy-laws-british-colonialism.
76
“Criminalising Homosexuality and Understanding the Right to Manifest Religion”, Human Dignity
Trust, 11 November 2015:
https://www.humandignitytrust.org/wp-content/uploads/resources/9.-Criminalisation-Freedom-of-Rel
igion.pdf.
77
Report of the Working Group on the Universal Periodic Review: Jamaica, A/HRC/16/14, 4 January
2011, para. 32.
9
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example is Malaysia, where section 377A has also been adopted in the Syariah Criminal
Offenses Act of 1977.78
2. Other forms of oppression

34. In many countries, there is a tendency to tie national and cultural values to religious
values and make them indistinguishable. This not only undermines the promotion of FoRB
for all by suggesting a monolithic national religious tradition (and thus marginalizing
minority religions), but it also often means that those human rights standards and values
that stray from this one interpretation of religion, such as LGBT equality or recognition are
undermined. The way this framework is sometimes manifested is through discourse about
protecting religious values that allegedly underpin the identity and meaning of the society
and the State. This narrative is used to undermine the rights and equality of LGBT people
in a variety of ways.
35. For example, in 2021, Kenya banned the film I Am Samuel, which depicted romantic
love between men. The government labeled it “an affront to our culture and identity” and
“demeaning of Christianity.”79 In 2017, the Egyptian Musicians Syndicate banned the band
Mashrou’ Leila from performing in Egypt when some audience members flew a rainbow
flag at one of its concerts in Cairo. Those audience members were arrested, and some have
been handed harsh prison sentences; the incident also started a clampdown on the LGBT
community.80 Incidentally the same band was also prevented from playing in the city of
Byblos, after being accused of blasphemy.81
36. The Russian 2013 law banning “propaganda of non-traditional sexual relations” to
minors is an example of censorship legislation that limits freedom of expression about
LGBT topics, and is reliant upon protection of religiously derived “traditional values.”82 In
2022, a St. Petersburg court found a photographer guilty after a showing a video that
depicted two men kissing in front of a church,83 and in November 2022, the lower house of
parliament unanimously voted to extend the law to apply to adults. The head of Russia’s
Orthodox Church backed the new legislation, and has portrayed Russia’s war in Ukraine as
a battle between those who support pro-Western gay pride events, and those who reject
them.84
37. In 2020, Hungary passed a law that effectively banned adoption by same-sex couples,
applying a strict Christian conservative viewpoint to the legal definition of a family. The
amendment altered the constitutional definition of families to exclude transgender and other
LGBT individuals, defining the basis of the family as “marriage and the parent-child
relationship,” and declaring that “the mother is a woman, and the father is a man.” The
78
ASEAN SOGIE Caucus and Justice for Sisters, joint submission, p. 8.
79
“‘Ban on gay film is uncalled for’, says the Atheists in Kenya Society”, Humanists International, 24
September 2021:
https://humanists.international/2021/09/ban-on-gay-film-is-uncalled-for-says-the-atheists-in-kenya-so
ciety. “Kenya Censors Another Gay-Themed Film”, Human Rights Watch, 27 September 2021:
https://www.hrw.org/news/2021/09/27/kenya-censors-another-gay-themed-film.
80
“Seven arrested in Egypt after raising rainbow flag at concert”, BBC, 26 September 2017,
https://www.bbc.com/news/world-middle-east-41398193.
81
“Lebanese pop band faces death threats over ‘blasphemous’ song”, NBC News, 25 July 2019:
https://www.nbcnews.com/feature/nbc-out/lebanese-pop-band-faces-death-threats-over-blasphemous-
song-n1034161. “Mashrou’ Leila blasphemy row: Byblos show cancelled over ‘bloodshed’ fears”,
Middle East Eye, 30 July 2019:
https://www.middleeasteye.net/news/mashrou-leilas-byblos-festival-show-cancelled-over-bloodshed-f
ears.
82
Rights at Risk: Observatory on the Universality of Rights Trends Report 2017, AWID, pp. 52–55,
https://cne.news/artikel/777-traditional-values-for-russian-church-more-important-than-gospel-norwe
gian-expert-says.
83
Coming Out, submission p. 3.
84
“Russia to ban sharing LGBT ‘propaganda’ with adults as well as children”, BBC, 27 October 2022:
https://www.bbc.com/news/world-europe-63410127.
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amendment also states that, “Hungary protects the right of children to self-identity
according to their sex at birth and provides an upbringing in accordance with the values
based on Hungary’s constitutional identity and Christian culture.”85
38. The vast majority of trans and gender-diverse persons in the world do not have access
to legal gender recognition from their State, in some bases with a base on religious
arguments. In Kenya, the High Court rejected an applicant's request for an identity card or
passport recognizing their intersex identity, stating that “Kenyan society is predominantly a
traditional African society in terms of social, moral and religious values;”86 in Egypt,
religious edicts limit gender-affirming care for transgender people,87 and in Pakistan in May
of 2023 the Federal Shariah Court declared several sections of the seminal Transgender
Persons (Protection of Rights) Act 2018 as “unIslamic” and therefore void.
E. Indirect discrimination
1. Inequality in family formation law and policy

39. A human-rights-based approach directly challenges family conceptions that are
exclusionary of LGBT persons. UN and regional treaty bodies have consistently stressed
the need to interpret human rights norms in ways that recognize the present-day diversity of
family forms.88 The Inter-American Court of Human Rights held that denying a mother
custody of her children on grounds of her sexual orientation was in violation of the right to
protection of the family, among others.89
40. Thirty-three States now recognize same-sex marriage and/or same-sex civil unions.90
Many have done so with the stated aim of bringing their laws and policies into line with
their human rights obligations. South Africa, for example, legalized same-sex marriage in
2006 after its Constitutional Court held that denying the right to marry on grounds of sexual
orientation violated the rights to equal protection, non-discrimination and respect for
human dignity.91 Colombia’s 2016 reform followed a decision by the Constitutional Court
affirming that, “Every person has the dignity, freedom and autonomy to constitute a family
[…] in accordance with their sexual orientation, receiving equal treatment and protection
under the Constitution and the law”.92 This trend mirrors the evolution over the last twenty
years in the guidance offered by international and regional human rights bodies on ensuring
equality and non-discrimination in marriage.93
85
“Hungary amends constitution to redefine family, limits gay adoption”, Reuters, 15 December 2020:
https://www.reuters.com/article/hungary-lgbt-idUKKBN28P1N8. “Rights groups condemn
Hungarian ban on same-sex adoptions”, AP News, 16 December 2020:
https://apnews.com/article/relationships-budapest-viktor-orban-couples-adoption-4e9eca5bc90c7810a
26e08c9178bae90.
86
High Court of Kenya, Richard Muasya v. the Hon. Attorney General, para. 148.
87
“A discriminatory system killed a transgender man in Egypt”, Open Global Rights, 10 November
2021: https://www.openglobalrights.org/a-discriminatory-system-killed-a-transgender-man-in-egypt/.
88
Magdalena Sepúlveda Carmona, A contemporary view of ‘family’ in international human rights law
and implications for the Sustainable Development Goals (UN Women, 2017):
https://www.unwomen.org/sites/default/files/Headquarters/Attachments/Sections/Library/Publications
/2017/Discussion-paper-A-contemporary-view-of-family-in-international-human-rights-law-en.pdf.
89
Inter-American Court of Human Rights, Atala Riffo and daughters v. Chile, 24 February 2012:
https://corteidh.or.cr/docs/casos/articulos/seriec_239_esp.pdf.
90
“Marriage Equality: Global Comparisons”, Council on Foreign Relations, 22 December 2022:
https://www.cfr.org/backgrounder/marriage-equality-global-comparisons.
91
Constitutional Court of South Africa, Minister of Home Affairs and another v. Fourie and another,
and Lesbian and Gay Equality Project and eighteen others v. Minister of Home Affairs and others,
CCT 60/04 and 10/05, 1 December 2005, para. 114:
https://www.saflii.org/za/cases/ZACC/2005/19.html.
92
Constitutional Court of Colombia, SU214/16, V 9.1, 28 April 2006:
https://www.corteconstitucional.gov.co/relatoria/2016/SU214-16.htm.
93
Inter-American Court of Human Rights, Advisory Opinion OC-24/17 requested by the Republic of
Costa Rica, 24 November 2017, para. 229 (8):
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41. By contrast, some States have moved to proscribe same-sex marriage. Rather than the
adherence to human rights norms in law, it is the influence of religious narratives in politics
that has remained the authoritative feature in these countries.94 The Guatemalan Congress,
for example, approved in 2018 the Life and Family Protection Bill, which was drafted and
lobbied for by politicians who self-identified as evangelical;95 in Nigeria, the national
legislature passed the Same-Sex Marriage Prohibition Act of 2014, which criminalizes
same-sex marriages and was reportedly supported by most Nigerians on the basis of “moral
and religious reasons,”96 and in several countries religious organizations have reportedly
formed powerful lobbies in government to push against the rights of LGBT persons,
including same-sex marriage.97
42. Noting that opposition to same-sex marriage is at times based on religious convictions,
the Inter-American Court of Human Rights has argued that such convictions cannot be used
as an interpretative guide when determining the rights of human beings: “[I]n democratic
societies there must exist a peaceful coexistence between the secular and the religious
spheres, implying therefore that the role of the States […] is to recognize the sphere
inhabited by each of them, and never force one into the sphere of the other.”98
2. Religious exemptions
43. As States have advanced their recognition of the rights of LGBT people to be free from
violence and discrimination, calls for “religious-based exemptions” from laws guaranteeing
equality for LGBT persons have increased.99 Some individuals, organizations and even
corporations have sought to exempt themselves from complying with regulations that
prohibit discrimination by arguing that their religious freedom would be unduly burdened if
required to perform certain activities that do not align with their beliefs.
44. Several submissions outlined situations where States enable religious exemptions for
persons or organizations who execute government or public functions such as child welfare,
marriage, or schooling. In some States, including the United States100 and Australia,101
government-funded foster care and adoption agencies can reject prospective families based
on sexual orientation, gender identity and faith. In other States, civil servants can refuse to
solemnize same-sex marriages if they assert that they cannot be involved in the act of
marrying the couple without contravening their religious beliefs,102 and faith-based schools
can legally favor students and professionals who share the school’s religious norms and
values in admissions and employment, a distinction that can be particularly impactful for
https://www.corteidh.or.cr/docs/opiniones/seriea_24_eng.pdf. Malcolm Langford, “Revisiting Joslin

v. New Zealand: Same Sex Marriage in Polarized Times”, in E. Brems and E. Desmet, Integrating
Human Rights in Practice: Rewriting Human Rights Decisions (Edward Elgar, 2017).
94
Javier Corrales, LGBT Rights and Representation in Latin America and the Caribbean: The Influence
of Structure, Movements, Institutions, and Culture, pp. 23–24:
https://globalstudies.unc.edu/wp-content/uploads/sites/224/2015/04/LGBT_Report_LatAm_v8-copy.
pdf.
95
“Guatemala: 3 Killings of LGBT People in a Week”, Human Rights Watch, 22 June 2021:
https://www.hrw.org/news/2021/06/22/guatemala-3-killings-lgbt-people-week.
96
Human Rights Watch, ‘Tell Me Where I Can Be Safe’, 20 October 2016, p. 17:
https://www.hrw.org/report/2016/10/20/tell-me-where-i-can-be-safe/impact-nigerias-same-sex-marria
ge-prohibition-act.
97
Damaris Seleina Parsitau, “Law, Religion, and the Politicization of Sexual Citizenship in Kenya,”
Journal of Law and Religion, 36:1, April 2021.
98
Inter-American Court of Human Rights, Advisory Opinion OC-24/17, Gender Identity, and Equality
and Non-Discrimination of Same Sex Couples, requested by the Republic of Costa Rica, 24
November 2017, para. 228: https://www.corteidh.or.cr/docs/opiniones/seriea_24_eng.pdf.
99
100
Adrianne M. Spoto, “Fostering Discrimination: Religious Exemption Laws in Child Welfare and the
LGBTQ Community”, New York University Law Review, 96:1, April 2021:
https://www.nyulawreview.org/wp-content/uploads/2021/04/N.Y.U.-L.-Rev.-96-1-April-Spoto.pdf.
101
Equality Australia, submission, p. 5.
102
Guide on ECHR Article 9, para. 85: https://www.echr.coe.int/documents/guide_art_9_eng.pdf.
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LGBT students and staff alike. The mandate has learned of several cases in Australia where
religious schools have fired teachers because their sexual orientation was seen to contradict
the school’s religious norms and values.103 Some States justify their acquiescence of such
dismissals on the grounds that religious institutions should have autonomy in their internal
administration, admissions policies, and curricula.104 This claim, however, can hinder the
successful implementation of plans and programs intended to promote diversity-oriented
education, comprehensive sexuality education, and gender equality.105 This has been
recognized by the Inter-American Court of Human Rights, which recently found that in a
case involving the withdrawal of a teacher’s certification in religious education when it
became publicly known that she was cohabiting with her lesbian partner, Chile had violated
the teacher’s right to equality and non-discrimination, right to privacy, and her right to
work.106
45. Providers of goods and services to the public have also gained exemptions from
non-discrimination laws to exclude customers who are LGBT based on their religious
beliefs. These claims often involve, but are not limited to, objections to serving LGBT
couples who are seeking to celebrate relationships (for example, refusing to bake cakes,
host receptions or print invitations for same-sex partnership ceremonies) or to carry out
political and social activism (for example, refusals to print materials for Pride Parades).
46. States owe obligations under international human rights law to ensure that LGBT
consumers are not discriminated against, regardless of whether its agent is a State or a
non-State actor.107 As the Special Rapporteur on freedom of religion or belief outlined, “it is
not permissible for individuals or groups to invoke ‘religious liberty’ to perpetuate
discrimination against […] lesbian, gay, bisexual, trans and intersex persons, when it comes
to the provision of goods or services in the public sphere.”108
3. Conscientious objection
47. Religious exemptions are often referred to as protections for healthcare providers’
“conscientious objections” to provide services that go against their convictions, including
abortion services, and hormonal and other similar treatments. In the United States , more
than one in eight LGBT people live in states where doctors can legally refuse to care for
them on conscience- or religion-based grounds,109 and in Mexico, the State of Nuevo Leon
enables healthcare workers to “conscientiously object.”110 Research suggests that these
types of healthcare policies disproportionately impact LGBT persons of color: a recent
survey found that 23% of LGBT persons of color reported experiencing some form of care
refusal by a doctor or other healthcare provider (as opposed to 15% of all LGBT persons
surveyed), and 46% of trans or non-binary respondents of color experienced at least one
kind of care refusal by a healthcare provider (as opposed to 32% overall).111
103
104
Callaghan & van Leent, “Homophobia in Catholic schools: An exploration of teachers’ rights and
experiences in Canada and Australia,” Journal of Catholic Education, 22(3), 2019:
https://digitalcommons.lmu.edu/ce/vol22/iss3/3/.
105
Evident, submission, p. 4. “Comunicado de FAERA Proyectos de modificación de la ley de ESI”,
FAERA, 5 September 2018: https://obispadodezaratecampana.org/?p=15212.
106
Sandra Pavez v. Chile, 2022 : https://www.corteidh.or.cr/docs/casos/articulos/seriec_449_esp.pdf.
Ligia Castaldi, “Inter-American Court issues first religious freedom decision, breaking with the
ECHR on questions of religious autonomy”, European Centre for Law and Justice, 2022:
https://eclj.org/religious-autonomy/un/inter-american-court-issues-first-religious-freedom-decision-br
eaking-with-the-echr-on-questions-of-religious-autonomy. Guide on Article 9 ECHR, para. 85:
https://www.echr.coe.int/documents/guide_art_9_eng.pdf.
107
CCPR/C/21/Rev.1/Add.10.
108
A/HRC/ 37/49, para. 39–40.
109
Movement Advancement Project; McLemore et al., submission p. 3; and Human Rights Watch,
submission, p. 2.
110
Institute of Legal Investigations of the Autonomous University of Mexico (UNAM), submission p. 6.
111
Center for American Progress, “Advancing Health Care Nondiscrimination Protections for LGBTQI+
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48. Some proponents of these policies argue that there exists a human right for healthcare
professionals to conscientiously object to “prescribing cross-sex hormones”.112 Moreover,
these groups have successfully expanded the concept of so-called “conscientious objection”
beyond individual healthcare workers to enable institutions like hospitals or even for-profit
companies to invoke this claim in countries such as Chile and the United States.113 These
efforts pose a threat to LGBT persons in substantially restricting the spaces in which they
can access necessary services.
49. United Nations human rights bodies have recognized conscientious objection in the
limited context of military service; 114 and the Human Rights Committee has advised States
to remove all barriers to effective access by women and girls to safe legal abortion caused
as a result of conscientious objections by individual medical providers.115 Regarding the
provision of healthcare, United Nations treaty monitoring bodies and numerous Special
Procedures have emphasized that States cannot permit conscience-based refusals of
healthcare to infringe on the rights of patients,116 including the right to reproductive
healthcare.117 Where States choose to enable conscience-based refusals, international law
obliges States to ensure an adequate number and dispersion of willing providers;118 limit
conscientious objection claims to individuals (as opposed to institutions);119 establish
effective referral systems for willing providers;120 prohibit refusals in emergency
circumstances;121 and establish systems to monitor compliance with all of these
requirements.122
IV. Access to spirituality for LGBT persons
50. For the last six years the Independent Expert has received testimony from LGBT
persons on an almost daily basis. Frequently, they have referred to the moment (or
succession of moments) when they realized that, should they pursue happiness by
embracing their sexual orientation or gender identity, the religion in which they were born
would consider them as sinful, or evil; as inherently immoral, or not worthy of
transcendence. Often, another realization followed immediately: that they would be
rejected by their family, their community, their region, or their country. These moments
often led to a life-long struggle between various forms of identity (religious, sexual, and
gender) that are equally important in a person’s life.123
Communities,” 8 September 2022:

https://americanprogress.org/article/advancing-health-care-nondiscrimination-for-lgtbqi+-communitie
s/.
112
“Freedom of Conscience: Protecting our moral compass,” Alliance Defending Freedom International,
2020:
https://www.academia.edu/45550585/Freedom_of_Conscience_Protecting_our_moral_compass.
113
Rights at Risk: The Observatory on the Universality of Rights Trends Report 2021, Observatory on
the Universality of Rights, p. 64.
114
115
116
A/HRC/14/20/ Add.3, para. 55.
117
118
ESCR Comm., General Comment No. 22, E/C.12/GC/22, paras. 14, 43.
119
CCPR/C/GC/36, para. 8. The World Health Organization has recommended banning institutional
claims of conscience:
https://bioedge.org/bioethics-d75/conscientious-objection/conscientious-objection-is-indefensible-say
s-who/.
120
E/C.12/GC/22, para. 22.
121
Ibid.
122
CCPR/C/GC/36, para 8. ESCR Comm., Concluding Observations: Spain, E/C.12/ESP/CO/6 (2018),
paras. 43–44.
123
GIN-SSOGIE, submission, p. 5.
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51. Indeed, “individual conscience does not extend to coercing a religious community to
accept religious claims in conflict with those to which the community feels bound,”124 and
while persons have a right to exit the community, this remedy does not always address the
complex relationship between a believer and their religion. For many individuals, their
religion is part of the foundation of their sense of self, the source of truth. Although they
may disagree with certain tenets of their religious teaching, or with the ways in which
religious authorities interpret these, it is an important part of their identity and social fabric.
To leave, and sometimes be forced to leave because of exclusionary practices or teachings
can have significant implications for identity and spiritual wellbeing. In many cases, the
painful departure from their religious or spiritual community has life-long impact on the
mental wellbeing; in others, the option is not just to leave: it can be the taking of one’s life.
52. The “option to leave” response to discrimination within religious institutions can also
fail to appreciate that many individuals are born into a religion, and membership of their
religious community can feel immutable. It is part of their familial and social upbringing
before they have emotional and financial independence and remains so when others depend
on them. Leaving a faith community in many cases is impractical or impossible; and where
a person has little or no social, economic, or personal independence from a religious group,
or where they risk custody of their children, the right of exit is downright illusory.
53. The mandate is concerned about alienation from organized religion and its impacts on
the ability of the individual to seek happiness through spirituality.125 A submission noted, in
this respect, that “[i]n cases where claims based on religious beliefs are being used as a
justification for discrimination, decision-makers should consider how rights of LGBTQ+
people to their own freedom of thought, conscience and religion might impact the
outcome”;126 a concern that the mandate sees as intimately connected with environments
that enable practices of conversion.
54. The following section provides examples of religious traditions from different religious
and belief systems – some of which follow structures of strict hierarchy and others as fluid
and non-hierarchical rules – that are LGBT-inclusive and -affirming.127 These traditions and
the communities that represent them also constitute stakeholders within discussions on
freedom of religion or belief and freedom from violence and discrimination based on
SOGI. Paying attention to their voices and practices can help shift the essentialist narrative
that suggests the exercising of freedom of religion or belief can be incompatible with the
equal enjoyment of human rights by LGBT persons and opens a new normative space
wherein both human rights frameworks can contribute to strengthening each other. As
noted by the Special Rapporteur on FoRB, “[a] multitude of voices exists within religious
groups and institutions, including faith-based actors who campaign for the rights of women,
girls and SOGI minorities and work to promote gender equality within their faith.”128
A. Inclusive and/or supportive approaches
55. The extent to which same-sex intimacy is condemned by different religious traditions is
a matter for theological debate; for example, some scholars question the interpretation of
passages in the Hebrew Bible and Quran used to condemn modern LGBT sexualities and
124
Cole Durham, “The Right to Autonomy in Religious Affairs: A Comparative View”, in Church
Autonomy: A Comparative Survey, 2001:
https://classic.iclrs.org/content/blurb/files/Chapter%2033.%20Durham.pdf.
125
A/74/181, para. 28.
126
127
A/HRC/43/48, para. 55.
128
A/HRC/42/48; para. 39.
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identities,129 and it has been argued that the apparent monolithic religious censure of LGBT
persons is a recent phenomenon, informed in part by “homocolonialism” and as a response
to the perceived threats surrounding heterosexual family structures dominant in most
faiths.130
56. Persons who support gender and sexual equality as a matter of law and as religious
practice are found in every religion. Authorities, theologians, and laypeople of several
religious denominations embrace LGBT identities and consider LGBT equality as integral
to their belief. The mandate is familiar with different contexts in which Buddhist
communities have historically respected same-sex couples;131 Hinduism does not condemn
same-sex sexuality if it does not affect heterosexual marriage, and hijra persons have
important spiritual roles in the tradition.132 The Primates of the global Anglican
Communion have “condemned homophobic prejudice and violence and resolved to work
together to offer pastoral care and loving service irrespective of sexual orientation [and]
reaffirmed their rejection of criminal sanctions against same-sex attracted people.”133 The
National Church of Iceland authorizes same-sex marriages, as do the Episcopal Churches of
the United States and of Scotland.134
57. In some cases, religious authorities have delineated areas in which religious thinking
and freedom from violence and discrimination based on sexual orientation concur.
Recently, the Catholic Pope criticized criminalization of same-sex relations as “unjust” and
against God’s teachings.135 Three of the four major Jewish denominations openly support
decriminalization,136 and even within the Orthodox Jewish tradition, 104 leaders released in
2010 a joint statement asserting that harassment of LGBT persons is against the deepest
values of Judaism.137 One State submission underlined the good practice of guidance for
religious schools, issued by Anglican, Jewish, and Methodist hierarchies to address
bullying against LGBT pupils,138 and, in South Africa, Imam Muhsin Hendricks is gay and
part of Masjidul Ghuraah, an LGBT-inclusive mosque in Cape Town.139
58. Even when the hierarchy of a religious community does not explicitly embrace
diversity, religious institutions, schools, councils, NGOs, movements and networks that are
formally or informally dissident may seek reform or be de facto inclusive. Submissions
129
Momin Rahman, Homosexualities, Muslim Cultures and Modernity (2014), pp. 72–8. Louis
Crompton, Homosexuality and Civilization (2003), pp. 111–204.
130
Momin Rahman, “Towards a Dialogue between Muslims and LGBTI people: pathways and pitfalls”,
p. 43:
uality.pdf.
131
Michael Vermeulen, “The rise of Rainbow Dharma: Buddhism on sexual diversity and same-sex
marriage”:
uality.pdf.
132
Ruth Vanita, “Hinduism”, in Homosexuality and Religion (Jeffrey S. Sike, ed.), 2006, pp. 125–128.
133
Primates 2016, Walking Together in the Service of God in the World, 15 January 2016:
https://web.archive.org/web/20160203212507/http://www.primates2016.org/articles/2016/01/15/com
munique-primates/.
134
Citizen Outreach Coalition, submission, p. 10.
135
“The AP Interview: Pope says homosexuality not a crime”, AP News, 25 January 2023:
https://apnews.com/article/pope-francis-gay-rights-ap-interview-1359756ae22f27f87c1d4d6b9c8ce21
2.
136
Trust, 11 November 2015, p. 29:
igion.pdf.
137
Ibid, p. 30.
138
United Kingdom, submission, p. 2.
139
“‘I’m hoping there will be more queer imams’”, The Guardian, 19 October 2022:
https://www.theguardian.com/global-development/2022/oct/19/im-hoping-there-will-be-more-queer-i
mams.
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mentioned, for example, Catholic church branches140 and gay prayer groups141 in Mexico,
the United States,142 and Germany.143 The Fellowship of Christian Councils in Southern
Africa focusses on the inclusion of diverse sexual orientations and the protection of LGBT
individuals from violence and discrimination in churches and the wider society; and the
Cosmopolitan Affirming Community in Kenya welcomes LGBT persons of faith to explore
and experience their faith in an affirming environment.144 The Coalition of Religions,
Beliefs and Spiritualities in Dialogue with Civil Society is composed of more than 25 civil
society organizations, interfaith dialogue spaces, faith-based organizations and other
movements whose objective is to support LGBTIQ issues, sexual and reproductive rights
and feminist agendas. In December 2020, more than 350 religious and belief leaders from
10 religions signed the Global Interfaith Commission on LGBT+ Lives’ Declaration
proclaiming the sanctity of life and dignity of all people regardless of a person’s sexual
orientation or gender identity;145 and in 2022 over 150 religious and belief leaders from 30
countries and a range of faiths agreed on six safeguarding principles to protect LGBT
people from harm: empowerment, prevention, proportionality, protection, partnership, and
accountability.146 Progressive Islamic organizations such as the Al-Fatiha Foundation
similarly argue that laws criminalizing homosexuality are incompatible with the values of
peace and tolerance adopted by the Prophet Muhammad.147 Other examples are Muslims for
Progressive Values, the Global Interfaith Network, and the Islamic community center for
transgender people, Al Fatah, in Indonesia.
59. Other organized belief systems protected under FoRB, while not religious in nature are
compatible with the equality of all persons regardless of SOGI. Humanism, for example,
recognizes that sex is an evolved trait, with no intrinsic meaning. It does not require rigidly
defined sex or gender roles:
“Humanists see sex as a means of positive personal expression, pleasure, intimacy
and/or bonding, and communication, as well as sometimes for reproduction. The
principles of humanism assert that all people—the LGBTQ community, and women
and men equally—should be able to enjoyably explore their sexuality, and that this
is a part of every person’s full humanity.”148
60. In Juchitán, Mexico, muxes embody a hybrid third gender which is neither man nor
woman, and are traditionally considered a blessing from the Gods in the Zapotec vision of
the universe (cosmovisión).149 The māhū in Native Hawaiian and Tahitian communities
embrace both the feminine and masculine and are keepers of traditional practices such as
hula and chant.150 In South Asia, Khawaja Siras are a gender-variant community considered
to have a feminine soul, who occupied the roles of spiritual advisors, military commanders
and were members of royal courts in pre-colonial Mughal periods of rule in India.151
140
Comisión Nacional de los Derechos Humanos de México, submission, p. 1.
141
AsilegalMx, submission p. 2.
142
Catholics for Choice, submission, p. 1.
143
Honduras (NHRI), submission, p. 16; referring to the #OutInChurch initiative.
144
Outright International, submission, p. 8.
145
A/76/152, par. 24.
146
Globalinterfaith.lgbt (landing page).
147
Trust, 11 November 2015, p. 29:
igion.pdf.
148
Abby Hafer, “Humanism, Sex, and Sexuality”, in The Oxford Handbook of Humanism, 2019, pp.
564–598: https://doi.org/10.1093/oxfordhb/9780190921538.013.34.
149
Alfredo Mirandé, Behind the Mask: Gender Hybridity in a Zapotec Community (2017), p.15;
AsilegalMx, submission p. 3.
150
Eleisha Lauria, “Gender Fluidity in Hawaiian Culture”, The Gay & Lesbian Review, 2022:
https://glreview.org/article/gender-fluidity-in-hawaiian-culture/.
151
Shroff, ‘Operationalizing the “New” Pakistani transgender citizen Legal gendered grammars and
trans frames of feeling’, in A. Roy (ed.), Gender, Sexuality, Decolonization (2021) p. 265.
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Two-spirit or berdache persons are a blend of male and female spirits believed by several
First Nations communities in Canada to have access to a distinct realm of spirituality as
healers, shamans, and ceremonial leaders.152
61. Western LGBT categorizations cannot fully capture the diversity of indigenous
sexualities and genders because sexual diversity has “historically been the norm, not the
exception, among Indigenous peoples.”153 Indigenous scholarship from the Americas, South
Asia and the Pacific regions records various gender-fluid identities, many of which carry
deep spiritual significance and important roles in their respective communities, thereby
defying modern understandings of gender binaries and heteronormative sexualities. In
Ghana, for example, in celebrating the akom-kpele deity of Nungua, persons manifest
same-sex relations.154
62. The Special Rapporteur on FoRB report notes how indigenous sexualities were often
considered immoral, perverse, and unnatural by the colonizers, and the process of sexual
assimilation, criminalization and pathologization has had a profound impact on the
traditional status and roles of indigenous LGBT persons in the post-colonial period.155
Colonization exacerbated indigenous peoples’ vulnerability to violence and discrimination
and created obstacles to their full and equal participation in indigenous and wider society,
spiritually or otherwise. For example, the Criminal Tribes Act (CTA) 1871 codified binary
gender norms in British India by outlawing homosexuality and criminalizing
cross-dressing. The severe marginalization of, and violence against, Khawaja Siras in
Pakistan today has been linked to the lingering impact of this colonial-era legislation.156 In
Hawaii, Māhū is considered a derogatory term against LGBT persons and its negative
connotations coincide with the loss of Māhū’s spiritual status during colonization in
Hawaiian society.157
B. Dialogue and mutual respect: a powerful way forward
63. Several submissions recognized the potential of spaces of encounter between “persons
or leaders of faith” and “LGBTIQ+ persons or leaders”, as a means of limiting
discriminatory practices among these two identifiable groups. A precision, however, is
necessary: these are not communities and populations that are mutually exclusive; to the
contrary, these are human groups that overlap. All believers, including religion and belief
leaders, have a sexual orientation and a gender identity, and all LGBT persons have beliefs:
a significant proportion among them will have religious convictions, and there are many
LGBT faith and belief leaders.
64. An organization versed in the design and execution of the Colombian Peace
Agreements, and which developed a project to nurture dialogue between persons of faith
and LGBTI persons with significant impact in the creation of trust and awareness,
suggested that a possible methodology
152
OCAM-D, submission, p. 2.
153
Manuela L. Picq and Josi Tikuna, “Indigenous Sexualities: Resisting Conquest and Translation,
E-International Relations”, 20 August 2019, p. 1:
https://www.e-ir.info/2019/08/20/indigenous-sexualities-resisting-conquest-and-translation/.
154
LGBT+ Rights in Ghana, submission p. 3.
155
A/77/514, p. 16.
156
S. Samel, “Transgender in India and Criminal Tribes Act (CTA)”, in Gupta and Khobragade (eds.),
Third Gender: Stain and Pain, India (Vishwabharati Research Centre, 2018), pp. 187–188; J. Hinchy,
“Troubling bodies: ‘eunuchs,’ masculinity and impotence in colonial North India”, South Asian
History and Culture, 4:2 (2013), pp. 196–212.
157
Aleardo Zanghellini, “Sodomy Laws and Gender Variance in Tahiti and Hawai‘i”, 2:2 Laws 2013, p.
51 (arguing that sodomy laws, in conjunction with social processes such as urbanisation and
Christianisation, are partially to blame for the diminished social status of māhū).
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implies the mobilization of personal transformations (one by one) in which persons

can identify if their positioning leads to the oppression of another. This will only
occur in spaces of dialogue, observing others that are as much a person as one is,
and through observing their face, their body, and their voice beyond the sector to
which they belong.158
Another submission alluded to a similar idea:
deep differences, held by people with equal claims to dignity, persist, and the
ultimate question of justice is not which group will prevail, but how the dignity and
rights of everyone can be optimized. Stable peace must be anchored in pluralism in
which the fears of all are minimized by maximizing protections for all.159
65. Examples of good practices abound. The Utah Compromise, for example, is seen as a
valuable roadmap that reconciles different beliefs under a strong ethos of rights for all, its
limitations in relation to public accommodations notwithstanding. National commissions
for the prevention of discrimination organize meetings with church leaders to discuss
common objectives, including non-discrimination based on sexual orientation in Mexico160
and in Argentina.161 The National Council of Churches in India has been intimately
involved in organizing around the issue of decriminalization, taking a faith-based stance
that rejects prejudice and discrimination against sexual minorities.162 In Canada, Scotland,
England, and Wales, churches and other religious organizations played an important role in
decriminalization debates and the positive role that churches can play in taking moral
understanding forward.
66. In 2017 and 2020, the HIV Legal Network hosted two conferences examining the role
(past, present, and future) of the church in decriminalizing same-sex intimacy across the
Commonwealth, with a particular focus on States in the Caribbean. These conferences
brought much-needed nuance to the oft-reductive debates around religion and LGBT rights
and unpacked the history of religious-based opposition to same-sex intimacy drawing from
examples in Northern Ireland, South Africa, and Belize.163
67. These examples show that FoRB also has the potential to reinforce rather than simply
erode LGBT rights. Indeed, adherents of these denominations and belief systems can claim
that anti-LGBT manifestations of religion (such as criminalization and discrimination) not
only impinge upon the right of LGBT people to be free from violence and discrimination
based on SOGI, but also violate the denominations’ own rights of freedom of religion,
especially when their religion or belief depends in part on the ability of LGBT people to
live free from violence and discrimination and access spirituality on equal terms with
everyone else.164 Highlighting this common ground can help to dismantle the “claim to
monopoly of victimhood in the matter of freedom of religion [and belief]”165 that
proponents of anti-LGBT beliefs currently seem to possess in international human rights
law discourse.
158
Colombia Diversa, submission, p. 3.
159
Durham et al., submission p. 2.
160
National Human Rights Commission of Mexico, submission, p. 4.
161
Argentina (NHRI), submission, p. 2.
162
HIV Legal Network, submission, p. 4.
163
Michael Kirby AC CMG, “Foreword,” in Intimate Conviction (Volume 1), Canadian HIV/AIDS Legal
Network, 2019, pp. 35–36.
164
Dag Øistein Endsjø, “The other way around? How freedom of religion may protect LGBT rights”,
24:10, International Journal of Human Rights, 2020.
165
Ibid, p. 7.
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V. Conclusions
68. Embracing spirituality and faith is a path that must be available to all, including
all persons with diverse sexual orientations and gender identities. Human beings often
long for a sense of purpose in their lives. For a very large proportion of humanity,
spirituality is a fundamental part of this quest, and FoRB is a shield put in place to
protect it, as well as protecting the right not to be part of a particular belief.
69. At the same time, in all latitudes there are dark corners where LGBT people are
regarded as sinners and second-class citizens who should be scorned and abused.
Laws enacted with the aim of mandating standards of conduct purportedly demanded
by interpretations of religious dogma effectively deny lesbian, gay, bisexual, and trans
and other gender diverse persons the right to equality and, often, equal recognition
under the law.
70. The limits established in the very design of FoRB – including the fundamental
rights and freedoms of LGBT persons – are the key to full compatibility of FoRB and
all actions that are necessary to combat violence and discrimination against them,
alongside the strong and clear framework for hate speech that has been crafted within
the United Nations under the Rabat Plan of Action. Respect for the right of all human
persons to thought, conscience and religion or belief is a must; at the same time, all
stakeholders have a responsibility to ascertain when these noble freedoms have
historically been – and continue to be – instrumentalized to nurture, perpetuate or
exacerbate violence and discrimination against lesbian, gay, bisexual, and trans and
gender diverse persons.
VI. Recommendations
71. The Independent Expert recommends that States:

(a) carry out necessary analysis and reform to ensure that legislation and
public policy complies with human rights standards, including the principle of
non-discrimination;
(b) ensure that any law or public policy relating to the frameworks of
religious exemptions or conscientious objection is compatible with international
human rights standards and does not negate the access of LGBT and other gender
diverse persons to fundamental rights, services and goods, including health,
education, employment, housing and political participation;
(c) ensure the bodily autonomy and sexual and reproductive health and
rights of LGBT and gender diverse persons, as well as comprehensive sexuality and
gender education in line with international standards;
(d) working in collaboration with feminist and LGBT-led and LGBT-serving
civil society, including religious groups who work on an inclusive basis, apply
principles of inclusion and intersectionality, and challenge essentialist conceptions
around sexual and gender identities under both the FoRB and SOGI frameworks;
(e) dismantle laws and policies that criminalize same-sex intimacy or gender
identity and repeal laws criminalizing offenses such as blasphemy;
(f) create a safe environment in which all persons who manifest their religion
or belief, including LGBT and other gender diverse persons, are free from fear of
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violence and discrimination and are aware of the distinction between protected speech
and hate speech;
(g) refrain from justifying with religious narratives any act of violence and
discrimination based on sexual orientation and gender identity; prevent and
investigate such acts, and ensure the accountability of perpetrators and the provision
of effective remedies for damages. In particular, do so by
(i) enacting preventive legislation and public policy, including
educational programs that promote non-discrimination against LGBT
and other gender diverse persons, and ensuring that these are developed
with the participation of LGBT-led and LGBT-serving organizations,
(ii) supporting initiatives of dialogue between leaders and other
persons of an ample spectrum of faith and opinion, including persons
who are LGBT or otherwise gender diverse and persons who are not;
(h) encourage religious institutions to consider inclusive approaches that
facilitate the participation and recognition of LGBT and other gender diverse
persons;
(i) engage with faith-based leaders on avenues in which their religious
institutions can use their moral standing to prevent and combat violence and
discrimination against LGBT and other gender diverse persons;
(j) encourage religious institutions to consider the ways in which
representatives will be held responsible in cases in which they promote discrimination
against LGBT and other gender diverse persons; and
(k) condemn incitement to violence and discrimination against LGBT and
other gender diverse persons, and those who defend their rights, by religious leaders
and adherents.
72. The Independent Expert recommends that faith-based leaders, including persons
who are LGBT or otherwise gender diverse and persons who are not:
(a) recognize that sexual orientation and gender identity are diverse around
the world and that gender manifests differently in many cultural and social structures
and practices, including that many cultures recognize more genders than the
male-female binary;
(b) condemn incitement to violence and discrimination against LGBT and
other gender diverse persons and those who defend their rights, including narratives
portraying LGBT and other gender diverse persons as seeking to recruit others into
particular sexual orientations and gender identities, or having contaminating effects
among children or others; and
(c) examine the historical role of religious institutions in the perpetration of
human rights violations; consider their role in the provision of remedies to injured
parties and other measures of redress, including non-repetition, by examining
institutional norms, practices and frameworks that may have the effect of creating
physical or psychological damage on LGBT and other gender diverse persons; and
consider the possible institutional involvement in the perpetuation of laws
criminalizing same-sex intimacy and gender identity, in practices of conversion, and
in seeking to unduly prevent legal recognition of gender identity based on
self-identification.
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Annex
Activities 2022–2023
1. Violence and discrimination based on sexual orientation and gender identity are
never justified and must be prevented, investigated, prosecuted and, if relevant, punished
and be at the base of measures of reparation.
2. Since his last report to the Human Rights Council in 2022, the Independent Expert
made efforts to expand the range of his in-person activities while maintaining his virtual
presence, which was spurred by the COVID-19 pandemic. Although the public health crisis
continued until May 2023, many activities could be gradually retaken during the period,
observing safety protocols. Nonetheless, several events and activities were still organized
under hybrid formats, allowing for the engagement of a wider range of stakeholders.
3. The Independent Expert organized a series of events to increase the visibility of all
areas of his work. Some of the events addressed topics in focus during the year, namely the
mandate’s Report on Health and its Report on Armed Conflict, while many others
continued threads of work initiated previously, such as the issue of LGBT persons on the
move, the incidence of hate crimes, practices of “conversion therapy”, and social inclusion.
These events brought together thousands of participants from all regions of the world,
virtually or in-person. As a development of his 2022 General Assembly Report, in March
of 2023, the Independent Expert was invited to brief members of the UN Security Council
during an Arria formula meeting on the human rights of #LGBTI persons in the context of
armed conflict.
4. In June and October 2022, the Independent Expert participated in hybrid
interactive dialogues with the Human Rights Council and the General Assembly.
Throughout the year, he also maintained virtual contact with representatives of United
Nations entities, international organizations, civil society organizations and business
leaders. At the regional level, activities were carried out with the OAS, its LGBTI Core
Group, and the IACHR. He was also able to attend conferences in different conferences
around the globe, such as Sydney World Pride (Australia), the Caribbean LGBTI Data
Roundtables (Barbados), and the ILGA Asia Conference (Vietnam). Dozens of bilateral
exchanges with representatives of Member States were also held.
5. The gradual return of in-person activities allowed for the Independent Expert to
resume the work programme contingent on travels. During the period, he undertook
country visits to the United States of America, the Kingdom of Cambodia and the United
Kingdom of Great Britain and Northern Ireland. He also undertook promotional and
advisory visits to countries including Peru, Thailand and Saint Lucia.
6. In 2022 and 2023, the Independent Expert has attended official hearings with
public agents from multiple States’ legislative and executive branches to advise on
legislation and policy in topics related to sexual orientation and gender identity. The
Independent Expert has issued specific advice on pending legislation to the United
Kingdom (specifically to the Scottish Parliament), the Republic of Korea (Seoul
Metropolitan Council), the European Union (in the figure of the European Parliament), as
well as the governments of Indonesia and Uganda. The Independent Expert had previously
been consulted and given advice on other pieces of legislation that came into force during
the period, such as the new provisions on legal gender recognition adopted in Finland and
Spain.
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7. In the period of activities, at the invitation of Member States, government

representatives, academia, and CSOs, the Independent Expert participated in scores of
panels and presentations during which he engaged with hundreds of stakeholders from all
corners of the world.
8. During the reporting period, the Independent Expert gave more than 40 in-depth
interviews for television, radio, and print media. He also issued essays, video messages,
and op-eds, and developed an active social media presence. Available data shows that the
mandate has built an audience across all regions of the world.
9. In this period, the Independent Expert also issued 23 individual or joint official
press releases and media statements, including on comprehensive sexual education and
reproductive health, the situation of forcibly displaced LGBT persons, and one thematic
statement about the compounded effect of racialization in the lives of LGBTI persons of
color, on the occasion of the 2023 International Day against Homophobia, Transphobia and
Biphobia (IDAHOBIT), which was joined by a group of over 60 United Nations and
regional independent experts, as well as by the IACHR.
10. The Independent Expert sent 37 communications in which allegations of human
rights violations in relation to sexual orientation and gender identity were raised, along with
other Special Procedures and/or by which he sought to provide technical advice on
legislation and policies.
23

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A/HRC/53/37

Advance unedited version Distr.: General

Human Rights Council

Freedom of religion or belief, and freedom from violence and

Report of the Independent Expert on protection against violence and

II. Legal framework

A. Freedom from violence and discrimination based on sexual orientation

B. Right to freedom of religion or belief, sexual orientation, and gender

11. Human rights are subject to an interpretation preventing “the destruction of

protection of freedom of religion or belief similarly rejected all FoRB-based justifications

C. Institutional autonomy and freedom from discrimination

III. Violence and discrimination in the name of religion or belief

marriage is a religious or spiritual directive is another chilling example.50 In particular, the

B. Hate speech and incitement

meanings given to biological sex characteristics60 – is a dangerous “ideology.”61 In Peru,

C. Actions seeking regression of human rights of LGBT persons

D. Direct State discrimination allegedly grounded in religion and/or belief

1. Criminalization of same-sex intimacy and gender diversity

2. Other forms of oppression

1. Inequality in family formation law and policy

https://www.corteidh.or.cr/docs/opiniones/seriea_24_eng.pdf. Malcolm Langford, “Revisiting Joslin

IV. Access to spirituality for LGBT persons

Communities,” 8 September 2022:

A. Inclusive and/or supportive approaches

B. Dialogue and mutual respect: a powerful way forward

implies the mobilization of personal transformations (one by one) in which persons

71. The Independent Expert recommends that States:

7. In the period of activities, at the invitation of Member States, government

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