The Clash of Rights: How Far Should Religious Freedom Go?

Brid Peoples

The law, by many, is seen as a tool for justice. But what happens when the law is asked to arbitrate between competing rights? The ongoing struggle between LGBT+ rights and religious freedom brings this question to the legal system, as courts in the UK, Ireland and further around the world are forced to wade through this complicated conversation. While religious freedom is a fundamental right, it is increasingly being used to justify discrimination. Courts must do more to protect equality, ensuring a  greater balance struck between competing rights.

In Ireland, we have been dominated by UK culture, political system and the English common law. Prior to Irish independence from the UK in 1922, sexuality and LGBT rights were governed by UK legislation. The Irish Free State, followed by the establishment of the Republic of Ireland in 1937, inherited many UK laws, including the 1861 Offences Against the Person Act which criminalised homosexuality.

While England and Wales decriminalised homosexuality in 1967, this was not extended to Northern Ireland until 1982. In the Republic it was not until 1993 after the European Court of Human Rights (ECtHR] stepped in that this law was repealed. The case of Norris v Ireland, 13 Eur. H.R. Rep. 186 (1988) at the European Court of Human Rights marked a decisive turning point in Irish law, where it was ruled that criminalising same-sex relationships was inconsistent with the Article 8 provision of the right to respect to your private life.

So why has it taken Ireland decades after the UK and other European countries to legalise homosexuality? Arguably, it is due to the influence of Christianity, as there has been slower progress on LGBT+ rights due to religious influence. For hundreds of years, the Republic of Ireland (ROI) has been deeply religious and conservative, a trend mirrored in Northern Ireland. However, as ROI has become less conservative and more secular in recent decades, this trend has not been reflected in Northern Ireland.

Northern Ireland’s politics and culture are deeply rooted in religion, particularly Christianity. That is not a controversial statement to make, as the 2021 census highlighted that 45.7% of the population self-defined themselves as Catholic or coming from a Catholic upbringing, and 43.5% were Protestant or other Christian. Historically, a state or community that is highly religious is much more likely to be conservative. This entrenched religiosity has had direct legal consequences, such as the delayed introduction of same-sex marriage and abortion access in NI.

However, as the rights and visibility of the LGBT+ community have expanded greatly in the past century, Christian denominations in NI have become more accommodating and accepting of the community. This is partly down to the influence of the European Convention on Human Rights, and domestic law, such as the HRA and Equality Act. But as religious conservative power has waned from its peak in NI and throughout the UK and Europe, the struggle between balancing religious-based belief and protection from discrimination has become more astute.

Even as societal attitudes shift, clashes between NI’s religious culture and the LGBT culture persists. This can be seen in the Ashers bakery case in 2018, where the Supreme Court ruled that a Christian family-run bakery’s refusal to make a pro-gay marriage cake was not discrimination. This case illustrates a broader trend in NI, the UK, and the wider world. As LGBT+ rights advance, religious claims are increasingly invoked to resist them - raising questions as to where the courts should draw the line between competing fundamental rights under legislation.

Article 9 of the Human Rights Act 1998 protects freedom of thought, belief and religion, and Article 10 protects freedom of expression. However, human rights law is built around the principle of proportionality. Toleration is required by all sides, but a balance must be struck between competing rights. It can lead to a slippery slope when one right is valued above another, leading to further erosion of fundamental rights. Increasingly, the use of religious freedom and freedom of speech is being used as a vehicle for discrimination.

In the UK, the Equality Act of 2010 legally protections people from discrimination in the workplace and in wider society, and protects religious persons if they are discriminated against because of their beliefs. What the law should not do, however, is provide recourse for those who wish to impose their beliefs on others in violation of anti-discrimination laws. Arguably, this is becoming a frequent occurrence.

In 2022, an employment tribunal ruled that ‘gender-critical’ beliefs are protected under the Equality Act 2020. This is because they have been deemed ‘philosophical beliefs’. The requirements for something to qualify as a philosophical belief was set out in Grainger plc v Nicholson [2009], and the five criteria has since been known as the ‘Grainger criteria’. 

This precedent was applied in Mackerath v Department of Work and Pensions [2022] which held that Dr David Mackereth’s ‘gender-critical’ views relating to his Christian beliefs met the Grainger threshold, and thus were protected philosophical or religious beliefs. 

It is difficult to see how ‘gender-critical’ beliefs rooted in religion are not discrimination. Under UK law, via the Equality Act, even controversial beliefs that deny the very existence of certain groups can be protected. The belief that people cannot change their sex or gender, and the belief that people cannot use pronouns that differ from their sex registered at birth are protected. But how does this not equate on some level to bigotry? 

For example, using the employment-related case mentioned earlier such as in Mackereth, it is difficult to envision that Mackereth would have been upheld if it was the belief that inter-racial or inter-faith marriage is unnatural. However, as our culture becomes more conservative and the LGBT+ community comes increasingly under attack, these ‘critical’ discriminatory beliefs are being repackaged as simply differences in philosophy, not the bigotry it really is.

To be clear, as the UN Special Rapporteur on freedom of religion or belief Ahmed Shaheed noted, religious communities are not monolithic. In many religions around the world, tolerance, difference and respect are promoted. Some religions are committed to non-discrimination, the inalienability of all human rights and advancement of gender equality. Certainly, increasing discrimination is not only coming from the religious community, such as the Maya Forstater case. 

It is important that in analysing competing rights, such as free speech, freedom of religion and respect for a private and family life, the courts should take a balanced approach. In the Ashers Bakery case noted above, I think that the courts came to the right decision by not enforcing speech on the owners of the Bakery to support something they did not support. Although the wider context of the case highlights the arguably discriminatory beliefs of the owners of Ashers Bakery, the issue in this case was compelled speech.

Amid rising violence against the LGBT+ community, particularly the trans community, domestic courts, the ECtHR and the UK government should do more to ensure fundamental equality and anti-discrimination laws are respected. The charity Stonewall reports that hate crimes against trans people in the UK has increased 186% in the last five years, and hate crimes on the basis of sexual orientation is up by 112%. It is not hard to understand why there has been an explosion in hate crimes, as the LGBT+ community is being used as a political punching bag, with right-wing conservative political actors scapegoating trans people especially. While of course transphobia and homophobia is not exclusively due to religious opposition, it is important to note how deeply rooted religious power is to the UK, particularly in healthcare and charity funding. Empirical data suggests healthcare, social care and other social work professionals who are affiliated with religion, are more likely to have a negative attitude to LGBT+ people than those who are not affiliated with religion.

Stronger legal safeguards are needed as religious freedom increasingly serves as a smokescreen for anti-LGBT discrimination. If NI and the UK is serious about being a modern, progressive and inclusive society, it cannot allow religious conservatism to dictate fundamental rights. No beliefs, no matter how sincerely held, justifies denying dignity and respect to others.