Under the leadership of Secretary of State Michael Pompeo and Ambassador to the United Nations Nikki Haley, the Trump Administration should strengthen protections of the fundamental rights of individuals that are guaranteed in international treaties. The U.N. bureaucracy has undercut these protections by prioritizing the political interests of special identity groups. The Trump Administration can help restore the proper relationship between the U.N. bureaucracy and sovereign member states that has eroded due to administrative overreach.
This is critical, as the Obama Administration and the international cognoscenti—a handful of Western nations, the U.N. bureaucracy, and leftist activists—have advanced the interests of one identity group over all others—based on rapidly changing ideas about sexual orientation and gender identity (SOGI). This, despite the fact that there are no established human rights based on sexual orientation and gender identity. Elites have ignored the concerns of U.N. member states and are trying to manufacture and impose new rights based on sexual orientation and gender identity.
Efforts to establish new rights and privileges based on membership in special groups undermines the logic of universal human rights, which is that every person has inherent human dignity regardless of his or her race, gender, national origin, or religion. Creating new rights based on membership in special identity groups corrodes the principles of equality and universality. Every person’s rights should be protected, regardless of sexual orientation or gender identity. The best way to achieve this goal is to strengthen human rights for all. Manufacturing new rights for certain groups opens up a Pandora’s box of conflict with fundamental rights, particularly freedom of religion or belief, free speech, and parental rights.
The Trump Administration should ensure that America’s human rights policy at the U.N. is consistent with U.S. law. Doing so will ensure that all Americans continue to enjoy their rights under the United States Constitution, which are also protected in international human rights treaties.
When Basic Human Rights Conflict with Policies Based on Special Identities, Including SOGI, the U.S. Should Respect the Former
Previous U.S. Administrations have taken different policy positions concerning group identities at the U.N. During the second George W. Bush Administration, the Organization of Islamic Cooperation (OIC)REF began introducing resolutions on “defamation of religions” at the Human Rights Council and the U.N. General Assembly to combat “Islamophobia.” The resolution introduced two problematic ideas. First, it introduced the radical and entirely subjective idea of suppressing speech that offended certain religious orthodoxies. Second, it created a hierarchy of rights based on special identities and undermined the principles of universality and equality for all.
All human beings, whether Buddhist, Hindu, Christian, Jewish, atheist, Muslim, or any other faith should enjoy freedom of religion, or the freedom not to believe. Although the motion passed multiple times, support for the resolution in the Human Rights Council and General Assembly gradually eroded due to strong U.S. leadership.REF
The Bush Administration abstained from voting on resolutions pertaining to SOGI.REF However, in 2011, then-Secretary of State Hillary Clinton reversed the U.S. position and cast a vote in favor of the Human Rights Council Resolution 17/19 on SOGI announcing, “[G]ay rights are human rights, and human rights are gay rights.” This pithy statement is misleading for two reasons. First, it implies that people who identify as gay do not currently enjoy human rights protections. Second, it implies that all claims based on sexual orientation and gender identity merit special recognition as new human rights. But, “no credible voice in the international human rights community asserts that LGBT [lesbian, gay, bisexual, and transgender] persons do not have human rights and those who imply otherwise create proverbial ‘straw men.’”REF Violence against any person is wrong, regardless of whether he or she is homosexual or heterosexual, transgender or cisgender. LGBT activists are proposing a solution in search of a problem, and in so doing, inject a dangerous new ideology into the existing established human rights system.
Freedom of Religion and Belief Conflicts with SOGI Non-Discrimination Policies. The freedom of religion or belief is one of only seven rights in the International Covenant on Civil and Political Rights (ICCPR) that are “non-derogable,” which means that governments may not suspend these rights even in the event of an emergency. The freedom of religion or belief is foundational to the entire system of universal human rights, which is based on shared human dignity. Article 1 of the Universal Declaration of Human Rights (UDHR) grounds human dignity in human beings’ endowment with two faculties: reason and conscience.REF Therefore, the freedom to live according to one’s consciences is integral to the flourishing of all human rights. Article 18 of the UDHR protects the individual’s “right to freedom of thought, conscience and religion…either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”REF
The addition of categories to anti-discrimination definitions based on SOGI conflicts with the individual’s core right to freedom of religion and belief in member states and at the U.N. Although the term “non-discrimination” may seem innocuous, it is a loaded term. There are numerous cases in Europe and the United States of SOGI non-discrimination laws being used to force individuals to endorse a new sexual orthodoxy by supporting same-sex relations or same-sex marriage, under threat of economic punishment.REF The European Court of Human Rights (ECHR) has upheld the terminations of civil servants and private employees for refusing to perform services for same-sex marriages.REF The United States Supreme Court is currently considering the case of a Christian cake artist who was ordered by the State of Colorado to endorse same-sex marriage by designing a custom wedding cake despite his religious objections. The U.K. Supreme Court is hearing a similar case.REF None of these individuals turned someone away because that person identifed as LGBT; rather, the conflicts were the result of disagreement over the definition of marriage. No state should force a person who believes that marriage is between one man and one woman to endorse something she believes is untrue because of pressure from a politically powerful identity group.REF
Yet, the U.N. bureaucracy is promoting SOGI non-discrimination policies with no apparent regard for the possible violations of fundamental rights, including freedom of religion or belief.
The top human rights official at the U.N., High Commissioner for Human Rights Zeid Ra’ad Al Hussein, actively participates in the U.N. LGBT Core Group that seeks to integrate new SOGI rights into all human rights treaties.REF In addition to the Office of the High Commissioner for Human Rights (OHCHR), which is the bureaucratic epicenter of the U.N.’s human rights apparatus, many of its mechanisms, treaty bodies,REF and special mandate-holders,REF have expanded the meaning of negotiated treaties far beyond the actual texts. These human rights experts are largely unaccountable to anyone.
In 2016, amid great controversy, the Human Rights Council created a new Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity. The first individual to occupy this post was Vitit Muntarbhorn, a Thai law professor and prominent LGBT advocate, who was deeply involved in drafting the Yogyakarta Principles, the road map of the global LGBT movement to import SOGI principles into the existing universal human rights framework.REF
In his report to the Human Rights Council in April 2017, Muntarbhorn singled out the “challenging implications from various religious laws,” warning that they “might also be negatively applied…in relation to sexual orientation and gender identity.”REF In plain English, he was saying that religious beliefs are an obstacle to the integration of the new sexual orthodoxy into the international human rights system. In a deeply misguided move, Special Rapporteur for freedom of religion or belief, Heiner Bielefeldt, also positioned religious beliefs in opposition to the advancement of SOGI ideology. In 2016, he held a conference with Muslims for Progressive ValuesREF to “understand the resistance, obstacles and conflicts that exist in allegedly contradictory human rights issues such as the right to freedom of religion or belief and rights of LGBT persons.”REFThe very fact that the U.N.’s top official for defending freedom of religion or belief would hold a conference like this with a group that seeks to “overcom[e] authoritarian readings of holy books” illustrates the compromised position of religious liberty and conscience rights at the U.N.REF
All nations should condemn actions by governments that violate the human rights of an individual, regardless of their sexual orientation, whether they be extrajudicial punishments, such as arbitrary detention and torture, or denials of freedom of expression or freedom of religion or belief. And, as General Comment No. 22 to ICCPR Article 18 states, countries that recognize a religion or belief as the official religion cannot justify the infringement on the rights of citizens who hold different beliefs.REF However, it is neither the role of the U.N. nor any government to interfere with any religion’s determinations in how to read their holy texts.
The Human Rights Committee, the treaty body for the ICCPR, has embraced SOGI non-discrimination policies, yet inexplicably failed to acknowledge the threat to freedom of religion or belief. In addition to singling out Russia’s religious leaders for demonstrating “intolerance and prejudice” toward persons who identify as LGBT, it held in Young v. Australia that ICCPR Article 26 includes discrimination based on sexual orientation, even though there is no mention of it in the text.REF In its Concluding Observations on the Czech Republic, France, San Marino, and Austria, the Human Rights Committee called for states to implement SOGI anti-discrimination legislation into their domestic laws.REF
In nearly every case where SOGI ideology is in conflict with the established right to freedom of religion or belief, the U.N. bureaucracy treats the fundamental human right as an obstacle to the ideology rather than the other way around. The U.N. bureaucracy has it backwards. If it can downgrade one fundamental human right because of one new cultural orthodoxy, what is to stop it from downgrading other rights that are inconvenient for other ideologies? Progressive organizations have a habit of claiming that international treaties “require” certain outcomes, despite the fact that the language of the treaty is either silent on the matter, or, in some circumstances, specifically prohibits those outcomes.REF If the U.S. and likeminded nations do not stop the U.N. bureaucracy’s overreach, the protection of fundamental human rights could decline.
Of the 193 member states of the U.N., 165 do not support same-sex marriage, particularly those with highly religious populations.REF Not surprisingly, many of the wealthy European states at the forefront of promoting SOGI ideology are highly secularized and have already subordinated religious freedom to a radical SOGI agenda in their own jurisdictions.REF Equally important as the legal impact that SOGI ideology could eventually have on international law, is the tremendous impact that it will have on individual countries and their domestic laws and policies through the financial power of the U.N. and its many entities and programs, particularly among aid recipients in the developing world.REF As the U.N. bureaucracy throws its weight behind the social agenda of progressive elites, poorer countries will face the greatest pressure to adopt SOGI policies that will undermine the fundamental human rights of their citizens to live according to their religious beliefs.REF
The U.S. should impress upon the OHCHR and Special Rapporteur on Freedom of Religion or Belief that the fundamental, non-derogable human right of freedom of religion and belief must not be compromised by prioritizing the interests of special identity groups, whether they are based on religious or sexual orthodoxies. If U.N. mandate-holders are not responsive, the U.S. should consider additional steps, including withdrawal from the U.N. Human Rights Council.
Freedom of Speech Conflicts with SOGI Non-Discrimination Policies. Article 19 of the UDHR protects free speech: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”REF
SOGI non-discrimination policies present severe threats to free speech. Several European countries with SOGI policies have used hate speech laws to enforce the new cultural orthodoxy on sexuality and marriage upon religious actors. In 2003, Sweden prosecuted a Christian pastor for a sermon on homosexuality; his one-year prison sentence was only overturned through appeal to the European Court of Human Rights (ECHR).REF Belgium, Spain, Switzerland, and the U.K. have all launched police investigations into “hate speech” based on statements made by clergy who mentioned homosexuality during sermons or interviews. Worryingly, the ECHR appears to be moving in the wrong direction with judges warning that “extremist opinions [on LGBT issues] can bring much more harm than restrictions on freedom of expression.”REF Under the Obama Administration, the U.S. Agency for International Development issued a document, “LGBT Vision for Action,” that endorsed the concept of hate speech against people on the basis of SOGI.REF
To highlight how brazen the U.N. is in its zeal to push the SOGI agenda, one need look no further than the announcement in 2014 by then-Secretary-General Ban Ki-Moon, wherein he stated that the U.N. Secretariat would start recognizing same-sex marriages of U.N. employees.REF He made it clear at the time that he not only believed that same-sex marriage is a human right, but that opposition to it is rooted in “homophobia.”REF Ban made these provocative statements, despite the fact that there is not a single U.N. treaty or other document by member states that has recognized same-sex marriage.
Meanwhile, other U.N. bodies have been advocating for member states to legalize same-sex marriage. For example, the Committee on Economic, Social and Cultural Rights (CESCR) recommended that Slovakia and Bulgaria “consider adopting legislation that would grant legal recognition to homosexual couples and regulate the financial effects of such relationships.”REF During the Human Rights Council’s Universal Periodic Review, European countries recommended that Estonia, Slovenia, and Nigeria redefine marriage or recognize same-sex civil unions in their countries. Through this process Poland, Luxembourg, Slovenia, Ireland, and Australia “accepted” such recommendations, indicating their intention to implement them into domestic law.REF
The U.S. has the most robust protections of free speech in the world and should continue to lead by opposing any efforts by the U.N. bureaucracy or member states to limit speech. This includes speech that expresses support for traditional marriage and the view that an individual’s sex is based on biology, even if some perceive it as offensive.
Parental Rights and SOGI Policies. The right of parents to educate their children in accordance with their religious and moral beliefs is also protected by the ICCPR. Article 18(4) states: “States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”REF
SOGI ideology also conflicts with this fundamental right. In the U.S and other nations, orthodox Jews, Christians, and parents of other faiths have balked at government efforts to teach their children transgender ideology.REF That is their right as parents. The best science, medicine, and psychology do not support the treatment of gender dysphoria with the socialization, hormone therapies, and surgeries that the transgender community advocates.REF Many parents have reasonable religious and moral objections to their children being taught to believe in the biological impossibility of a male becoming a female or vice versa.
Nevertheless, the treaty body of the Convention on the Rights of the Child (CRC) has described traditional understandings of biological sex and gender roles as negative. The CRC Committee is so far outside the mainstream that, in “Concluding Observations” on Barbados, it urged the state to address “discrimination arising from the inappropriate socialization of boys and girls into inappropriate gender roles and the resulting determination of social attitudes concerning children based on gender.”REF This radical and revisionist interpretation of CRC Article 2’s prohibition against sex discrimination is highly controversial.
In a conversation with the current U.N. Independent Expert on SOGI, Victor Madrigal-Borloz, radical transgender activist Julia Ehrt stated that encouraging children to accept their biological sex is a “very common and harmful practice.REF However, according to the research of the Heritage Foundation’s Ryan Anderson, up to 95 percent of children who do not undergo controversial gender-reassignment procedures, such as taking puberty blockers and cross-sex hormone treatments, eventually become comfortable with their biological sex.REF Ehrt described her ideas as consistent with the CRC. The U.S. is not a party to the CRC, nor should it become one.REF
The United States must closely watch for SOGI ideology’s infringements of parental rights at the U.N. The U.S. should strongly oppose the manufacturing of new human rights to include the radical notion of fluid gender identity. These policies are causing significant conflicts among parents, schools, and governments in the jurisdictions of member states, and should not be imposed on states by the U.N. The U.S. should find opportunities to support language in documents that protects the traditional understanding of terms such as “gender,” “marriage,” and “the family.”REF
Reforming the U.N. Bureacracy by Limiting Its Activities to Its Mandate to Promote and Protect Fundamental Human Rights
International Consensus and the Legitimacy of Universal Human Rights. The recognition of the necessity of an international system for protecting universal human rights was borne from World War II and the Holocaust. Arduous negotiations by diplomats from diverse nations, cultures, and religions led to the first multipolar, multicultural, and multi-religious consensus on human rights. Working toward a common goal, diplomats from diverse backgrounds—American First Lady Eleanor Roosevelt, Lebanese Greek Orthodox philosopher Charles Malik, Chinese Confucian scholar Chang Peng-Chun, and French Jewish jurist Rene Cassin—drafted the Universal Declaration of Human Rights that 48 U.N. member states adopted in 1948.REF The process of consensus-building among sovereign member states is what gives the UDHR and human rights treaties legitimacy. Although the adherence to the treaties’ obligations has been notoriously uneven, the treaties have withstood the test of time and continue to be the yardstick for the international community.
The Development of Customary International Law. The intense pressure of the global LGBT movement has led the U.N. bureaucracy to assert that sexual orientation and subjective gender identity can be the basis for manufacturing new rights. But bypassing consensus-building by member states and the process of voting in order to enact treaties undermines the legitimacy of the international human rights movement. Equally as alarming is the potential that the U.N. bureaucracy’s repeated affirmations of SOGI ideology could eventually become part of customary international law. Only treaties between sovereign member states immediately become binding or, for lack of a better term, “hard law.” The opinions, statements, and recommendations of U.N. experts and the international bodies, like the U.N. General Assembly and the U.N. Human Rights Council, are considered non-binding “soft law.” Soft law, however, does have the potential to harden into customary international law with binding responsibilities if states repeatedly act as if the soft law binds them and have a subjective belief (opinio juris) that it does so.REF
Radical ideas, which unfortunately infect some aspects of international law, can also influence the U.S. legal system through the Supreme Court. Supreme Court Associate Justice Stephen Breyer is an advocate of “transnational legalism.” Observing that this is an “ever more interdependent world,” Breyer has argued that U.S. judges should cite to foreign law in interpreting the U.S. Constitution.REF Such transnational legalism is especially problematic insofar as it undermines U.S. sovereignty in domestic law.
This Administration should not remain neutral in the face of the multiple undemocratic ways that the U.N. bureaucracy is advancing SOGI policies. It should oppose efforts by progressive global elites to bypass the normal procedures for recognizing universal human rights that could undermine the legitimacy of the international human rights system.
The U.S. Should Oppose the U.N.’s Attempts to Impose New Rights on Sovereign Member States
The U.N. General Assembly’s mandate to the U.N.’s top human rights office is to “promote and protect” the effective enjoyment of existing human rights. But instead of focusing on enforcing the fundamental human rights that are not regularly respected in member states, the OHCHR has been deeply involved in promoting new SOGI ideology in treaties, and ultimately foisting them upon the citizens of U.N. member states.REF In 2013, the OHCHR launched the Free & Equal campaign, a highly visible and well-funded global initiative to promote ideas and policies—such as legalization of same-sex marriage, criminalization of so-called hate speech, and affirmation of subjective gender identities—that are anathema to many member states. The campaign includes glossy reports, celebrity-studded videos, and slick public relations messages, and boasts of organizing events in nearly 30 countries.REF Free & Equal asserts that “[e]veryone has the right to be free from discrimination, including on the basis of their sexual orientation, gender identity or expression, and sex characteristics.”REF Not surprisingly, the terms “sexual orientation,” “gender identity,” and “sex characteristics” are not in the UDHR, the ICCPR, nor the International Covenant on Economic, Social and Cultural Rights (ICESCR). Instead, the U.N. bureaucracy has manufactured the terms “sexual orientation” and “gender identity” from the word “sex.”REF Charles Radcliffe, Free & Equal’s founding director, has stated that a dozen U.N. agencies have made public commitments to advance SOGI non-discrimination policies in individual member states, and that more than 100 countries have implemented legal changes in response to U.N. SOGI recommendations.REF
Instead of representing the interests of all member states, the U.N. bureaucracy aggressively promotes the interests of a small group of radical LGBT activists. When the U.N. bureaucracy usurps the proper role of the member states by seeking to impose new interpretations of rights, it undermines the democratic process that best represents the interests of the citizens of the member states.
The hostile actions of the LGBT movement toward freedom of speech and free exercise of religion is dangerous. The hate speech agenda of Western SOGI advocates, and the radical nature of transgender ideology do not bode well for fundamental freedoms as protected in human rights treaties. The manufacturing of new rights based on membership in special identity groups, including SOGI, undermines the foundational principles of universality and equality. Just as the “defamation of religions” resolution fostered a hierarchical and sectarian view of human rights, SOGI policies are divisive and foster inequality by elevating the political interests of some over the fundamental rights of others.
As the U.S. Department of Justice has made clear, “in the United States, the free exercise of religion is not a mere policy preference to be traded against other policy preferences. It is a fundamental right.”REF The Trump Administration should make clear that the United States Constitution is America’s fundamental law, and that it controls how treaties interact with its provisions and other domestic laws. In order to restore the proper relationship between the U.N. and member states, and to strengthen protection of existing universal human rights, the United States should:
- Take positions at the United Nations to strengthen the protection of freedom of religion and belief, freedom of expression, and parental rights.
- Oppose efforts to manufacture new rights based on the interests of special identity groups, including broadening non-discrimination language to include sexual orientation and gender identity.
- Reform the U.N. human rights bureaucracy by pressing the OHCHR and its components to adhere strictly to their mandates from member states.
- Oppose efforts by the U.N. bureaucracy and human rights experts to pressure member states into adopting same-sex marriage. Oppose attempts by the U.N. to pathologize disagreements on the nature of marriage and biological sex through terms like “homophobia” and “transphobia.”
- Align policy positions at the U.N. with U.S. values and principles and end the policies of the previous Administration within federal agencies that advanced SOGI policies to the detriment of fundamental rights.
As this Administration considers whether to continue participation in the U.N. Human Rights Council, and the level of its financial support for the U.N., it should evaluate how responsive the U.N. bureaucracy is to observations that it is subverting the consensus-building process among sovereign member states and undermining the protection of fundamental human rights.
—Emilie Kao is the Director of the Richard and Helen DeVos Center for Religion and Civil Society, of the Institute for Family, Community, and Opportunity, at The Heritage Foundation. Grace Melton is Associate for Social Issues at the United Nations in the DeVos Center.