Earlier this month, President Joe Biden issued an executive order, “Memorandum on Advancing the Human Rights of Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Persons Around the World,” directing U.S. government entities to “pursue an end to violence and discrimination on the basis of sexual orientation, gender identity or expression, or sex characteristics.”
When we talk about human rights, it’s important to remember that every individual is entitled to his or her rights to life, freedom of belief, speech, and conscience. These are unalienable human rights.
These rights are universal, precisely because they stem from our inherent human dignity, and are not a result of one’s membership in any particular group. Setting these rights on any foundation other than our shared humanity weakens the exercise of those rights rather than strengthens them.
In fact, that is what Biden’s new memorandum threatens to do. The administration’s directive for eradicating violence and discrimination is fraught with peril for the free exercise of religious belief, conscience, and speech. It illustrates the left’s prejudice against faith and tradition.
This new executive order will have substantial impact on our foreign aid and diplomacy. It will have potentially far-reaching consequences for religious liberty and freedom of conscience for American faith-based organizations that operate around the world and for religious believers of all different creeds in other countries.
To be clear, targeted violence on the basis of any characteristic is repellant and wrong. And the U.S. government should advocate for the protection of human rights and defend the victims of human rights abuses wherever and whenever possible.
But this memo goes far beyond that.
For example, it directs U.S. government agencies to expand efforts to combat “intolerance” and “discrimination” on the basis of LGBTQI+ status or conduct. These are expansive terms that beg definition.
One primary target of these terms is the marriage laws of other countries. These laws are often influenced domestically by the prevailing religious traditions or cultural norms, and reflective of the democratic will of the people in those countries.
American efforts to bully these countries—whether with a carrot of additional aid or a stick of withholding aid—into liberalizing their laws on marriage or other issues of sexual morality will surely cause friction with proponents of national sovereignty and religious believers alike, especially in Muslim- or Christian-majority countries.
The distinction between disagreement and discrimination here is an important one. Take a familiar example from the United States: Individuals from a variety of faiths, or no faith at all, can disagree about the meaning or purpose of marriage, or about the government’s proper role in encouraging marriage. These disagreements can and often do stem from different religious beliefs.
The Supreme Court has addressed these conflicts between religious liberty and policies based on sexual orientation and gender identity in multiple cases now, confirming that disagreement—particularly disagreement rooted in religious belief—over whether two men or two women can or should marry is not the same as discrimination.
As Justice Anthony Kennedy wrote in his majority opinion in Obergefell v. Hodges, “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths … ”
He went on to state that individuals with conflicting beliefs about marriage “may engage those who disagree with their view in an open and searching debate.”
Then what is discrimination? Certainly targeting, beating, or imprisoning somebody simply because he or she is gay or transgender is discrimination, just as it would be discrimination if someone was similarly abused on account of his or her race or religion or biological sex.
However, is it discriminatory to set boundaries around the definition of marriage? No. There is no universal human right to the redefinition of marriage.
Under the guise of promoting human rights, with this new executive memorandum, the United States will instead be promoting an ideology about gender identity and sexual orientation that conflicts with internationally recognized rights.
While Americans can look to the First Amendment to protect their religious freedom, so too can people around the world find similar religious freedom protections in both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which explicitly protect the freedom to manifest one’s beliefs in private and in public, individually, or in community.
Regardless of popular opinion among liberal elites, human rights activists, or United Nation bureaucrats, the right to manifest one’s beliefs must also apply to those who maintain traditional beliefs about the creation of men and women, the definition and purpose of marriage, and the sanctity of life.
Furthermore, the Charter of the United Nations commits to protecting “human rights and fundamental freedoms” for everyone “without distinction as to race, sex, language or religion.”
But applying nondiscrimination standards on the grounds of sexual orientation and gender identity promotes the liberty and preferences of some at the expense of the freedom of religion, conscience, and expression of others.
Biden also calls for the U.S. to continue building coalition groups made up of members from like-minded nations, such as the U.N. LGBTI Core Group, and to engage international organizations to advance LGBTQI+ policies.
This call to action will further embolden elements within the U.N. human rights bureaucracy that have been operating outside their mandates.
These bureaucrats have been reading rights based on sexual orientation and gender identity into “gender” language in human rights treaties, and creating new rights that U.N. member states have not agreed to and that remain sensitive and controversial.
As Li-ann Thio, professor of law and former member of parliament from Singapore, recently wrote in a comprehensive report on equality and nondiscrimination in international human rights law:
[W]hile equality and non-discrimination may be a foundational human rights principle, a controversial interpretation of it involving discrimination on the basis of sexual orientation does not command universal consensus that it enjoys legal status. A global examination of national approaches demonstrates widespread dissent both within and between states and between inter-governmental organizations.
The LGBTQI+ agenda and policies are not universally popular around the world. Many countries and religions, particularly in the developing world, view “gender ideology” as a form of ideological or cultural colonialism that specifically threatens their religious values.
Yes, the U.S. can and should stand up for everyone’s human rights. But existing legal instruments are in place to do that, such as the International Covenant on Civil and Political Rights and the Universal Declaration on Human Rights. What the U.S. should not do is violate the internationally protected rights to freedom of religion or belief.
Cardinal Robert Sarah of Guinea has warned that “the violence against Christians is not just physical, it is also political, ideological, and cultural.”
During President Barack Obama’s 2015 visit to Kenya, Kenyan President Uhuru Kenyatta publicly repudiated American efforts to impose Western values on Africa, saying:
Kenya and the United States share so many values; our common love for democracy, entrepreneurship and value for families … [but] there are other things that we do not share; our cultures, our societies do not accept. It is very difficult to impose on people that which they themselves do not accept.
Finally, the memorandum requires all U.S. agencies engaged abroad—specifically, but not limited to, the departments of State, Treasury, Defense, Justice, Agriculture, Commerce, Labor, Health and Human Services, and Homeland Security; the U.S. Agency for International Development; the Development Finance Corp.; the Millennium Challenge Corp.; the Export-Import Bank; and the Office of the United States Trade Representative—to compile and submit reports annually on their progress in advancing initiatives on behalf of LGBTQI+ rights.
These government progress reports will likely catalog a number of examples of censorship and violations of conscience rights of those with earnestly held religious beliefs.
Religious belief motivates an enormous amount of charitable and humanitarian work here in the U.S. and abroad. Faith-based organizations are leaders in the nonprofit sector around the globe, and often partner with USAID or other government entities to deliver aid.
For example, groups as diverse as Catholic Relief Services, Islamic Relief USA, and the American Jewish Joint Distribution Committee have operations that serve communities across the developing world. All of them adhere to religious codes that reject many elements of the progressive LGBTQI+ agenda.
Nevertheless, these and other faith-based organizations are known for serving individuals of different creeds or no faith at all, and they deliver much-needed assistance all over the world.
It’s not hard to imagine that a frequent result of this executive memorandum will be that these sorts of faith-based organizations will lose out on contracts with the U.S. government if they fail to repudiate their religious beliefs about marriage or sexuality.
Recall, for example, the recent case of the evangelical organization Samaritan’s Purse that set up field hospitals in Central Park last year to treat patients at the height of the coronavirus pandemic in New York.
It welcomed everyone in need, and yet the organization was still pilloried as homophobic because of its adherence to traditional views of marriage.
The United States can and should champion the human rights of individuals who identify as LGBTQI+ by adhering to our American principles, honoring existing international treaties, and encouraging other countries to do the same without penalizing them for rejecting an ideological agenda.
An executive action designed to advance the special interests of a particular group under the guise of human rights will unnecessarily risk religious freedom at home and abroad.
Editor’s Note: This article has been updated to correct Justice Anthony Kennedy’s name.
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