Part III | Expanded Analysis
Category C | Discrimination
Topic 16 | Navigating FoRB and SOGI claims
Although it can be difficult to balance and reconcile religious freedom and belief (FoRB) claims with sexual orientation and gender identity (SOGI) claims, often it is not impossible. Several principles can help in navigating and resolving conflicting rights claims: (1) a universal commitment to the human dignity of everyone involved can help build empathy and respect between parties; (2) the effort to balance and reconcile rights should focus on creating a safe environment for everyone involved; and (3) the conversation should focus on the parties’ interests rather than their positions. Once interests align, parties are more willing and able to come to a pluralistic solution that is fair and balanced.
Introduction
Navigating competing interests in freedom of religion or belief (FoRB) and sexual orientation and gender identity (SOGI) claims is challenging. Where rights interests seemingly conflict, each side may fear that conceding any ground could lead to losing all rights; however, protecting rights interests does not have to be a zero-sum game.391 The goal in navigating competing rights interests should be optimizing the dignity and rights of all parties, in a “fairness for all” approach, rather than creating a “winner-take-all” outcome.392
Below is a discussion of guiding principles that can help minimize fears and maximize protections for all, in conflicts over FoRB and SOGI rights.393 A real-life case study, successfully implementing these principles, follows.
Principle 1: Focus on the human dignity of all.
Focusing on human dignity is the first principle in developing common-ground solutions between competing FoRB and SOGI claims. When each side respects the dignity of the other, they have increased empathy for the other—and empathetic parties are more willing to find solutions.
Admittedly, human dignity is a subjective, imprecise term.394 At its most basic level, it is the concept that all people have unalienable, inherent value simply by virtue of being human.395 But even with this understanding, the origins and implications of human dignity will be understood differently by those with different backgrounds and worldviews.396
For example, for Christians, human dignity stems from the divine. They believe God created individuals in His own image397 and is the Father of us all.398 Jesus Christ taught, “Verily I say unto you, inasmuch as ye have done it unto the least of these my brethren, ye have done it unto me.”399 This and other teachings invite Christians to see others as relatives and representatives of Jesus: “Jesus Christ is the human, every human is Jesus Christ.”400 Thus, for Christians, it is through relation to deity that every person is possessed of divine dignity.
Human dignity is also an understandable and appealing concept to many who are not religious. For example, Immanuel Kant’s defense of dignity is based on secular philosophical arguments.401 Atheists or humanists may find foundations of human dignity in human nature, on principles of reciprocity, or in the aspirations and rights of all to live a moral and fulfilling life.402
Certainly LGBTQ individuals may have multiple, overlapping identities and understand human dignity through multiple lenses. But in relation to their sexual or gender identity, many LGBTQ individuals believe human dignity relates to living and expressing their LGBTQ identity free from stigma or discrimination, and having others recognize that identity as integral to, rather than diminishing, their worth.403
LGBTQ individuals may feel their human dignity is not honored when their identity and actions are tolerated but not supported. For example, an engaged lesbian couple felt devastated when told that their wedding at a Christian-owned venue, while allowed, would not be celebrated.404 The Christian owners told the couple, “While our deeply held religious belief keep us from celebrating anything but marriage between a man and woman, we desire to serve everyone equally and do not want to keep anyone from using our building who would like to.”405 This statement was described by one member of the couple as “pretty awful and heart-crushing” and caused her to “just start[] crying hysterically.”406
A FoRB supporter may strongly identify with and support the Christian owner’s statement and right to refuse celebrating a same-sex marriage. Even so, understanding “the other’s” perception of human dignity and harms to dignity is an important step in honoring their dignity and developing empathy. Once an understanding and connection based on human dignity occurs, opportunities for productive conversation increase.
Principle 2: Focus on creating a safe environment for productive conversations.
In addition to connecting over dignity, parties must focus on creating a safe environment to facilitate productive conversations about real issues.
In disputes over rights, conversations aimed at workable solutions have many potential thorny off-ramps. These include escalating emotions that shift the conversation’s focus away from finding solutions.407 Potential off-ramps also include topics unaligned with real needs or proposed solutions that do not adequately address core issues; these can invoke skepticism and apathy in participants.408
Avoiding these and other off-ramps means facilitating conversations where all parties feel safe enough to voice their real concerns.409 Per Principle 1 discussed above, recognizing and honoring the human dignity of all parties, accompanied by empathy, facilitates this feeling of safety. Parties also create a safe atmosphere when they avoid emotionally charged or absolutist language. Instead, parties can lead with asking questions, listening, sharing neutral facts, communicating uncertainty (in a posture of teachability), and demonstrating a healthy balance of humility with confidence in their own values and interests.410 Such actions facilitate discussion of “actual needs with civility and good faith.”411
Principle 3: Focus on solutions that address parties’ interests, rather than their positions.
Discussions about conflicting FoRB and SOGI claims should be conducted with the goal of finding solutions. Initially, a solution may be as simple as connecting over human dignity. The final solution(s) should involve a creative and pluralistic balance of religious freedom interests and nondiscrimination interests.412
Creative, pluralistic solutions stem from conversations focusing on the parties’ interests, rather than their positions.413 A position is reflected in a statement like, “Trans females must be allowed to use the women’s bathroom,” while primary underlying interest may be reflected in a statement like, “I believe exclusion is hurtful to trans females.” Focusing on resolving positions is unproductive because every interest may have several positions.414 In contrast, finding ways to facilitate and balance interests will help resolve multiple, overlying positions.
It is possible to promote FoRB interests while discovering and validating SOGI interests. This may involve several steps, including building trust and relationships, asking questions to identify underlying interests, recognizing (and empathizing) that the other party cares more about their interests than yours, and presenting FoRB interests in a factual, non-accusatory way, while maintaining an appreciation for expressed SOGI interests.415 These steps help each party understand the legitimacy of the interests of other party.416
Case study
The above principles were implemented by advocates in a dispute over FoRB and SOGI rights in Loudoun County, Virginia, public schools.
In 2021, the Loudoun County School Board announced an upcoming board vote on policies favorable to transgender students. These policies included allowing preferred bathroom use based on gender identity and required pronoun use by school staff. Transgender and LGBTQ supporters celebrated the proposed policies, while religious-minded parents were concerned about what they saw as government-defined and -enforced morality. Differences between the two groups seemed irreconcilable, and according to local resident Melaney Tagg, rational people had become so filled with hatred that it made “the better angels of our nature . . . difficult to see.”417
The Community Levee Association (CLA), to which Tagg belonged, aimed to bring representatives of the two groups together to see if they might reconcile their differences and create pluralistic “fairness for all” solutions. Even though the transgender policy change was certain to pass, a small group of LGBTQ advocates agreed to attend a meeting with conservative FoRB advocates. They did so reluctantly, however, due to a lack of trust between the parties that the discussion would be open and civil.418
The CLA first worked to build trust by acknowledging the human dignity of all participants. Participants representing FoRB and SOGI interests were invited to share stories and facts about themselves, such as their favorite childhood memories. Although the discussions did not explicitly address human dignity, they were a means of helping participants recognize their shared humanity and human dignity.
Next, the CLA focused on maintaining productive conversations. After participants felt comfortable enough to share personal stories and interests, the conversation was directed toward the school board policy and the parties’ interests, rather than positions. They found common ground in their shared interest “to do what was best for children, for their safety, their learning, their dignity, their happiness.”419
Once the groups found aligned interests, they were able to craft solutions that protected both FoRB and SOGI rights. Representatives from both sides came to a unanimous agreement on eight of ten proposed amendments to the announced policy. Based on this experience, Tagg expressed, “We can get along. We can talk to each other. We can learn from each other. We can trust and respect each other. . . . When I seek to protect your rights and you seek to protect mine, we are both benefited. And perhaps we can even become friends along the way.”420
Conclusion
It is possible to successfully navigate competing FoRB and SOGI rights interests. Doing so is not a zero-sum game where any ground given is ground lost. Solutions that maximize the rights interests of all come about when both sides recognize their shared human dignity.
Conversations should remain focused on developing a safe atmosphere where each side feels free to share their core interests. Based on those interests, representatives are able to engage in developing fair and balanced, creative and pluralistic solutions that maximize the rights interests of all.
References
391. W. Cole Durham, Jr., et al., Response to the UN’s “Call for Input to a Thematic Report: Freedom of Religion or Belief (ForB) and Sexual Orientation and Gender Identity (SOGI)”, ICLRS, TALK ABOUT: LAW AND RELIGION (Feb. 16, 2023), https://talkabout.iclrs.org/2023/02/16/response-to-the-uns-call-for-input.
392. Id. For additional information about “fairness for all” approaches, see Toolkit Topic 3 (Fairness for all).
393. Durham, supra.
394. Michele Finck, The Role of Human Dignity in Gay Rights Adjudication and Legislation: A Comparative Perspective, 14 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 26, 44 (2016).
395. Emmaline Soken-Huberty, What Is Human Dignity? Common Definitions, HUMAN RIGHTS CENTER, https://www.humanrightscareers.com/issues/definitions-what-is-human-dignity (last visited Dec. 2024).
396. See BRETT G. SCHARFFS & EWELINA U. OCHAB, DIGNITY AND INTERNATIONAL HUMAN RIGHTS LAW: AN INTRODUCTION TO THE PUNTA DEL ESTE DECLARATION ON HUMAN DIGNITY FOR EVERYONE EVERYWHERE 116–22 (2022) (ICLARS Series on Law and Religion).
397. Genesis 1:27 (KJV).
398. Ephesians 4:4–6 (KJV).
399. Matthew 25:40 (KJV).
400. Nathanial Peters, Can You Have Human Dignity Without Christianity?, PUBLIC DISCOURSE (Jan. 20, 2022), https://www.thepublicdiscourse.com/2022/01/80074 (quoting New Testament scholar C. Kavin Rowe).
401. See Michael Rosen, Dignity: The Case Against, in UNDERSTANDING HUMAN DIGNITY 143, 146 (Christopher McCrudden ed., 2013); Apaar Kumar, Kant on the Ground of Human Dignity, 26(3) KANTIAN REVIEW 435 (2021).
402. See Humanist Common Ground: Atheism, AMERICAN HUMANIST ASSOCIATION, https://americanhumanist.org/paths/atheism (last visited Dec. 2024).
403. See Andrew S. Park, Respecting LGBTQ Dignity Through Vital Capabilities, 24 JOURNAL OF GENDER, RACE & JUSTICE 271, 284 (2021).
404. Greg Owen, Wedding Venue Devastatingly Shuns Lesbian Couple Citing “Religious Beliefs”, LGBTQNATION (Jan. 10, 2024), https://www.lgbtqnation.com/2024/01/wedding-venue-devastatingly-shuns-lesbian-couple-citing-religious-beliefs.
405. Id.
406. Id.
407. JOSEPH GRENNY, KERRY PATTERSON, RON MCMILLAN, AL SWITZLER & EMILY GREGORY, CRUCIAL CONVERSATIONS 28, 42 (3d ed. 2022).
408. Id. at 41.
409. Id. at 135.
410. Id. at 174.
411. Durham, supra.
412. Durham, supra.
413. ROGER FISHER & WILLIAM URY, GETTING TO YES 44 (3d ed. 2011).
414. Id.
415. Id.
416. Id.
417 Melaney Tagg, Collaboration Amid Controversy: A Hopeful Report from Loudoun County, PUBLIC SQUARE MAGAZINE (Mar. 1, 2022), https://publicsquaremag.org/politics-law/freedom/collaboration-amid-controversy-a-hopeful-report-from-loudoun-county.
418. Id.
419. Id.
420. Id.