U.S. COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM

WOMEN AND RELIGIOUS FREEDOM

Synergies and Opportunities
Cover image: A member of the #BringBackOurGirls Abuja 

campaign group raises her fist during a sit-in protest, a day ahead 

of the 80th day of the abduction of over 200 schoolgirls, at the 

Unity fountain in Abuja July 2, 2014. In recent months, Islamist 

group Boko Haram had launched a spate of bombings and raids, 

mostly in northeast Nigeria, including the mid-April abduction the 

schoolgirls. REUTERS/Afolabi Sotunde
WOMEN AND 

RELIGIOUS FREEDOM

SYNERGIES AND OPPORTUNITIES

Professor Nazila Ghanea

Associate Professor in International Human Rights Law 

University of Oxford

JULY 2017

Commissioners

Daniel Mark

Chairman

Sandra Jolley

Vice Chair

Kristina Arriaga de Bucholz

Vice Chair

Tenzin Dorjee

Clifford D. May

Thomas J. Reese, S.J.

John Ruskay

Jackie Wolcott

Erin D. Singshinsuk

Executive Director

UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM

WHO WE ARE

The U.S. Commission on International Religious Freedom (USCIRF) is an independent, bipartisan U.S. federal 

government commission created by the 1998 International Religious Freedom Act (IRFA) that monitors the 

universal right to freedom of religion or belief abroad. 

USCIRF uses international standards to monitor violations of religious freedom or belief abroad and makes 

policy recommendations to the President, the Secretary 

of State, and Congress. USCIRF Commissioners are 

appointed by the President and Congressional leaders 

of both political parties. The Commission’s work is supported by a professional, nonpartisan staff of regional 

subject matter experts. USCIRF is separate from the 

State Department, although the Department’s Ambassador-at-Large for International Religious Freedom is a 

non-voting, ex officio Commissioner.

WHAT IS RELIGIOUS FREEDOM

Inherent in religious freedom is the right to believe or 

not believe as one’s conscience leads, and live out one’s 

beliefs openly, peacefully, and without fear. Freedom of 

religion or belief is an expansive right that includes the 

freedoms of thought, conscience, expression, association, and assembly. While religious freedom is America’s 

first freedom, it also is a core human right international 

law and treaty recognize; a necessary component of U.S. 

foreign policy and America’s commitment to defending 

democracy and freedom globally; and a vital element of 

national security, critical to ensuring a more peaceful, 

prosperous, and stable world.
Professional Staff

Dwight Bashir, Director of Research and Policy

Elizabeth K. Cassidy, Director of International Law and Policy

Judith E. Golub, Director of Congressional Affairs and Policy and Planning

John D. Lawrence, Director of Communications

Sahar Chaudhry, Senior Policy Analyst

Elise Goss-Alexander, Researcher

Andrew Kornbluth, Policy Analyst

Tiffany Lynch, Senior Policy Analyst

Tina L. Mufford, Senior Policy Analyst

Jomana Qaddour, Policy Analyst

Karen Banno, Office Manager

Roy Haskins, Manager of Finance and Administration

Travis Horne, Communications Specialist

Eric Snee, Travel and Administration Specialist
Table of Contents

Acronyms ........................ . . . . . . ........................................... . . . . . . .................... . ix

Executive Summary. . ............................................... . . . . . . ...................... . . . . ...........1

Overview ....................... . . . . . . ............................................. . . . . . . .................... . .1

International Human Rights Sources ...... . . . . . . ............................................................... .1

Clashing Rights? The Treaty Body Response ...................................................... . . . . . . ........ .2

Religiously-Phrased Reservations ................ . . . . . . .................. . . . . . . ................................ .3

UN Mechanisms ............................................. . . . . . . .................... . . . . . . ..................5

Violations That Arise: Women’s Rights/Religion “Clashes”? ........... .......................... . . . . . . ........... .6

Harmful Practices ... . . . ....................... . . . . . . .................. . . . . . . ................................... 7

Violations of Women’s Rights and FORB . ............................................. .......................... .8

FORB and Women’s Equality ............................. . . . . ............................................... . . . .9

Transcending the Barriers, Addressing the Divide . . . . ......................................................... .10

Endnotes .................... . . . . . . ........................................... . . . . . . . . ....................... .11

USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES ix

Acronyms

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

CRC Convention on the Rights of the Child

FORB Freedom of Religion or Belief

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

ISIS Islamic State of Iraq and Syria

OSCE Organization for Security and Cooperation in Europe

UDHR Universal Declaration of Human Rights

UN United Nations

USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES 1

Executive Summary

Despite the normative integration between freedom of 

religion or belief (FORB) and women’s equality, these 

synergies are difficult to discern and there is a common misperception that women’s rights to equality 

and FORB are clashing rights. This is compounded by 

the extensive religiously phrased reservations by states 

upon ratification of international treaties that amplify 

this misperception that FORB serves to restrict women’s 

rights to equality.

The advocacy groups supporting these rights, and 

also their normative sources in international human 

rights law instruments, are largely distinct. However, general non-discrimination provisions do address both, and 

general comment no. 281 captures both rights holistically.

The correctives to these misperceptions lie in 

reflecting upon the universality, indivisibility, interdependence, and interrelatedness of all human rights 

norms. They also lie in the realization that FORB is a 

right like any other. FORB is neither a right of “religion” 

as such nor an instrument for support of religiously 

phrased reservations and limitations on women’s rights 

to equality. This is particularly the case with harmful 

practices, as elaborated in the joint general recommendation/general comment no. 31 of the Committee on 

the Elimination of All Forms of Discrimination against 

Women and no. 18 of the Committee on the Rights of the 

Child, however, the core principles also extend to other 

infringements of women’s rights to equality.

It is essential to (re)vitalize the synergies between 

FORB and women’s equality in order to advance each 

of these rights, to be able to address overlapping rights 

concerns, and to adequately acknowledge intersectional 

claims. Furthermore, the relevant advocacy groups and 

human rights mechanisms need to give further attention to this as a priority matter.

Overview

Observing the synergies between FORB and women’s 

equality has not been made particularly straightforward 

by the architecture of international human rights law. 

The human rights sources that address FORB and women’s rights to equality are distinct, and emerged from the 

lobbying of separate constituencies.2

This textually distinct basis is compounded by the 

thrust of the research and advocacy in women’s rights, 

which strongly highlights that violations to women’s 

rights are carried out in the name of religion, or at least 

that violations to women’s rights are excused or postponed due to the intransigence of religious tradition and 

culture, whether perpetuated by state or non-state actors 

or a combination thereof. This serves to exacerbate the 

(mis)perception of a necessary and inevitable clash 

between women’s rights to equality and FORB.

The juxtaposition of these two allegedly conflicting 

rights is conceptually untenable and counterproductive. 

It violates the universality of human rights in and of 

itself, since unless there is a holistic approach to human 

rights, its “indivisibility” and “interdependence” is 

denied. Furthermore, it fails to provide full redress to all, 

since it forces female claimants to “choose” to advance 

their right to either equality or FORB.

The purpose of this paper is to seek to identify 

synergies as well as complexities between FORB and the 

right to women’s equality through the analysis of various 

international human rights law documents impacting 

this topic.

International Human Rights Sources

International human rights provisions in hard law 

upholding FORB do not specifically mention women’s 

equality. Likewise, international human rights provisions in hard law protecting women’s equality (e.g., 

CEDAW) make no mention of FORB or even of religion.

The general non-discrimination provisions of every 

key international human rights treaty, however, assert 

the need for non-discrimination whether on the basis 

of sex or religion. This is captured, inter alia, in article 

2.1 of the International Covenant on Civil and Political Rights (ICCPR)3

 and article 2.2 of the International 

Covenant on Economic, Social and Cultural Rights 

(ICESCR).4 Non-discrimination both on grounds of sex 

and religion (or belief),5 therefore, necessarily reads into 

every human rights provision. Nevertheless, it remains 

the fact that the normative standards on FORB make no 

specific mention of women’s equality, and the normative 

standards on women’s rights make no specific mention 

of non-discrimination on the basis of religion or belief.

The normative standards upholding FORB are 

article 18 of Universal Declaration of Human Rights 

(UDHR), article 18 of the ICCPR, and the 1981 Declaration on the Elimination of All Forms of Intolerance and 
2 USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES

of Discrimination Based on Religion or Belief.6 These 

provisions make no mention of women’s equality or 

even of non-discrimination on the basis of sex. It took a 

decade into the annual FORB resolutions—adopted by 

the United Nations (UN) Commission and UN Human 

Rights Council—for these resolutions to adopt explicit 

provisions since 1996. These resolutions have required 

the Special Rapporteur on FORB to adopt a gender perspective into his/her mandate only since 1996.7

However, the language of FORB provisions is that 

of “everyone” and therefore irrespective of sex. On the 

one hand, the FORB sources we are raising here are 

very succinct. The first is an article of a declaration, the 

second an article of a convention, and the third a short 

(eight-article) declaration. On the other hand, the main 

legal source dedicated to the advancement of women’s 

equality is CEDAW—an extensive 30-article binding 

treaty. It makes no mention at all of FORB or indeed of 

religion. It does not even contain a standard non-discrimination provision calling for no discrimination 

based on religion or other status.8 One author explains 

this in the following:

CEDAW rests on the idea that all women do share an 

interest in their gender’s not being the basis of discrimination. Freedom from discrimination allows women to pursue all our other interests. CEDAW identifies all the ways 

in which women’s identity can lead to discrimination and 

aims to guide countries in drafting and implementing 

policies to advance those interests. The issues outlined 

by CEDAW do not apply merely to a particular subset of 

women but, rather, to all women, regardless of any other 

cross-cutting identity.9

These omissions are in some ways compensated by 

the UN Human Rights Committee, which is the treaty 

monitoring body with oversight over the realisation of 

the ICCPR. Since the ICCPR has provisions relating to 

non-discrimination on a number of status grounds (articles 2 and 26), to the equal enjoyment of rights by men 

and women (article 3), and also on FORB (article 18), it is 

not surprising then that the UN Human Rights Committee is able to address FORB and women’s equality with 

perception and experience in its general comment 28.

General comment 28 elaborates on its standalone 

non-discrimination on the basis of sex provision in 

article 3 “to ensure the equal right of men and women 

to the enjoyment of all civil and political rights.”10 This 

is distinct from the ICCPR’s general non-discrimination 

provision in articles 2(1) and 26.11 General comment 28 

emphasises that “all human beings should enjoy the 

rights provided for in the Covenant, on an equal basis 

and in their totality ... States should ensure to men and 

women equally the enjoyment of all rights provided for 

in the Covenant.”12 The UN Human Rights Committee 

requires that state parties take “all necessary steps” to 

enable the equal enjoyment of everyone to ICCPR rights, 

whether in the public or private sectors,13 or during 

states of emergency14 or conflict.15 The committee recognizes that this will require positive measures as well 

as measures of protection, including public education 

as to the role of women, the empowerment of women, 

changes to domestic legislation and tracking their effectiveness, and human rights training for officials.16

Clashing Rights? The Treaty Body Response

In summarizing the above, we note that textually both 

sex and religion are prohibited among the grounds of 

discrimination in general provisions of the International 

Bill of Rights (UDHR, ICCPR, ICESCR); however, both 

sets of human rights provisions (FORB and women’s 

equality) take insufficient account of the other. The 

international human rights instrument that most effectively addresses related concerns, as discussed, is general comment 28, as the UN Human Rights Committee 

is the only treaty body with provisions to be able to most 

readily address both FORB and women’s equality.

There are a number of reasons why there is such 

persistence in the presumption that FORB and the 

advancement of women’s rights to equality necessarily 

and inevitably clash. A dominant reason for this is the fact 

that numerous reservations to human rights concerning 

women and girls are asserted in the name of religion (usually a “state religion”) and religious laws. As one author 

coins it, there is a “frequent invocation” of religious norms 

as “defense in order to oppose gender equality claims.”17

Another reason is the gravity of the violations of the 

human rights of women and girls carried out in the name 

of (religious) tradition. Often the state then endorses violations, or neglects to act effectively on them.

In general, reservations to human rights treaties 

are distinctive to reservations to other treaties. This is 

because many such reservations take the “form of rejection of a human rights norm, as opposed to an interpre-
USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES 3

Religiously-Phrased Reservations

Algeria

Article 2:

The Government of the People’s Democratic Republic of Algeria declares that it is prepared to apply the provisions of this article 

on condition that they do not conflict with the provisions of the Algerian Family Code.

Article 16:

The Government of the People’s Democratic Republic of Algeria declares that the provisions of article 16 concerning equal rights 

for men and women in all matters relating to marriage, both during marriage and at its dissolution, should not contradict the 

provisions of the Algerian Family Code.

Egypt

In respect of article 16:

Reservation to the text of article 16 concerning the equality of men and women in all matters relating to marriage and family 

relations during the marriage and upon its dissolution, without prejudice to the Islamic Sharia’s provisions whereby women are 

accorded rights equivalent to those of their spouses so as to ensure a just balance between them. This is out of respect for the 

sacrosanct nature of the firm religious beliefs which govern marital relations in Egypt and which may not be called in question 

and in view of the fact that one of the most important bases of these relations is an equivalency of rights and duties so as to 

ensure complementary which guarantees true equality between the spouses. The provisions of the Sharia lay down that the 

husband shall pay bridal money to the wife and maintain her fully and shall also make a payment to her upon divorce, whereas 

the wife retains full rights over her property and is not obliged to spend anything on her keep. The Sharia therefore restricts the 

wife’s rights to divorce by making it contingent on a judge’s ruling, whereas no such restriction is laid down in the case of the 

husband.

General reservation on article 2:

The Arab Republic of Egypt is willing to comply with the content of this article, provided that such compliance does not run 

counter to the Islamic Sharia.

India

Declarations:

i) With regard to articles 5 (a) and 16 (1) of the Convention on the Elimination of All Forms of Discrimination Against Women, the 

Government of the Republic of India declares that it shall abide by and ensure these provisions in conformity with its policy of 

non-interference in the personal affairs of any Community without its initiative and consent.

ii) With regard to article 16 (2) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that though in principle it fully supports the principle of compulsory registration of

marriages, it is not practical in a vast country like India with its variety of customs, religions and level of literacy.

Ireland

Articles 16, 1 (d) and (f):

Ireland is of the view that the attainment in Ireland of the objectives of the Convention does not necessitate the extension to men 

of rights identical to those accorded by law to women in respect of the guardianship, adoption and custody of children born out 

of wedlock and reserves the right to implement the Convention subject to that understanding.

Israel

The State of Israel hereby expresses its reservation with regard to article 16 of the Convention, to the extent that the laws on 

personal status which are binding on the various religious communities in Israel do not conform with the provisions of that article.

Maldives

The Government of the Republic of Maldives reserves its right to apply article 16 of the Convention concerning the equality of 

men and women in all matters relating to marriage and family relations without prejudice to the provisions of the Islamic Sharia, 

which govern all marital and family relations of the 100 percent Muslim population of the Maldives.

Saudi Arabia

In case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under obligation 

to observe the contradictory terms of the Convention.21
4 USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES

tation of its scope, [and] they are more likely to be found 

incompatible with the objects and purposes”18 of the 

treaty. Furthermore, the “deterrent effect of reciprocity 

does not apply to human rights treaties ... because it regulates domestic behavior rather than relations among 

contracting parties.”19

Many of these reservations and declarations to 

human rights provisions concerning women’s rights are 

based on “religious” justifications, and particularly to 

articles 2, 5(a), and 16 of CEDAW.20 Article 2 of CEDAW 

outlines the range of 

measures that state parties will take “through 

all appropriate means 

and without delay” to 

eliminate discrimination 

against women. Article 5(a) also determines that state parties will take “all 

appropriate measures” in order to “modify the social 

and cultural patterns of conduct of men and women” in 

order to eliminate prejudices and “customary and other 

practices” based on “the idea of the inferiority or the 

superiority of either of the sexes or on stereotyped roles 

for men and women.” Article 16 of CEDAW addresses 

marriage and family life and the need to tackle discrimination and inequality in all aspects of marriage and 

family life. These reservations and declarations come in 

a variety of forms, and a selection is listed below.

The religiously phrased22 reservations23 listed above 

are indicative of the reasons why perceptions of religion 

(and FORB) necessarily being anti-women are so persuasive. These reservations have extensive implications 

and serve to seriously restrict women’s rights.24

The reservation from Algeria regarding article 2, for 

example, states that the elimination of discrimination 

against women is subject to the condition that they do 

not conflict with provisions of the Family Code. It does 

not, however, specify exactly what this implies for the 

rights upheld in CEDAW. Egypt’s reservation similarly 

restricts without specificity but subject to the Islamic 

Sharia. India’s declaration regarding articles 5(a) and 

16(1) means the state’s obligation to address prejudices 

on the inferiority of women and stereotyped roles for 

them and discrimination and inequality against them 

in marriage and family life will only be addressed with 

the “initiative and consent” of each community, since 

personal status laws are the prerogative of specific 

communities. It suggests the government is not even 

prepared to initiate discussion of this topic with the 

communities. This raises a complicating factor of the 

various entanglements of states with religion, religious 

authorities, and communities. These entanglements 

deeply implicate questions around religion and limitations on women’s rights. These state-religion(s) entanglements impact “laws, regulations or policies”25 on many 

levels, each of which may have political vested interests 

and patrimonial linkages 

with state authorities. 

In this context, the need 

to encourage states “to 

refrain from misusing 

the argument of cultural 

or religious relativism to 

evade their responsibilities”26 with regard to women’s 

rights cannot be overstated.

The implication of these reservations for women’s 

rights is given much attention by human rights bodies 

and in the academic literature. What is often forgotten 

in assessing these religiously phrased reservations and 

declarations restricting women’s rights, however, is that 

they also restrict a human rights understanding of FORB 

itself.27 After all, FORB, as a human right, “does not 

protect religions per se (e.g., traditions, values, identities, and truth claims) but aims at the empowerment of 

human beings, as individuals and in community with 

others. This empowerment component is something 

that freedom of religion or belief has in common with all 

other human rights.”28

The above reservations effectively impose a restriction on “everyone” from coming to an understanding 

of their own religion, and in manifesting their religion 

or belief in accordance with that understanding. For 

example, a Catholic woman, a Muslim couple, a Jewish 

divorcee, or a Christian child will have many aspects 

of their personal status determined in singular ways 

regardless of whether they have adopted or changed the 

religion or belief of their birth/designation, whether they 

understand their religious laws in that way, and whether 

they wish to manifest in the manner that was captured 

by a particular religious understanding and denomination at the time when that particular personal status law 

enshrined it in law in that country. These restrictions 

Reservations [to CEDAW] have 

extensive implications and serve to 

seriously restrict women’s rights.
USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES 5

therefore limit not only women’s rights, but also FORB, 

and particularly women’s rights to FORB.

To better understand the impact of religiously 

phrased reservations and declarations on FORB itself, 

the distinction between FORB and “religion” as such 

has to be better recognised. A sharper distinction has 

to be drawn between mere claims of FORB and those 

assertions that have been carefully assessed by independent legal authorities to be in line with international 

human rights standards. Regretfully, this point is often 

lost. Indeed, “the cultural defense or claims of religious 

freedom are used to oppose women’s demands for 

gender equality”;29 but “used” is not at all the same as 

saying it is legitimately so in human rights terms. Some 

conflate or confuse this. It is this confusion that leads 

some to rank the human right to FORB as problematic in 

and of itself, and an obstacle to the achievement of other 

human rights. The assertion that “where there is a clash 

between cultural practices or religious norms and the 

right to gender equality, it is the right to gender equality that must have normative hegemony”30 is correct in 

human rights terms. This is because the very rationale 

of human rights is that rights cannot be extinguished 

or vitiated for the sake of particular patterns of conduct. 

However, such clashes between gender equality and 

“religious norms” are not clashes with FORB. In fact the 

Special Rapporteur on FORB has categorically reminded 

us that we should not set up “the idea that freedom of 

religion or belief and 

equality between men 

and women are norms 

standing in opposition to 

each other ... one should 

not turn concrete conflicts between (seemingly 

or factually) competing 

human rights issues into abstract antagonisms on the 

normative level itself.”31

There are numerous tools for responding to these 

challenges. The first and most straightforward response 

is that all rights have been recognized to be “universal, 

indivisible and interdependent and interrelated.”32 It follows from this that FORB and women’s rights necessarily 

need to be read together—in a “holistic understanding of 

human rights”33—and serve to facilitate and be enjoyed 

alongside one another. Second, it is clear that no right 

can be used as the basis for extinguishing other rights, 

nor to denying rights and freedoms to others. This is 

reflected not only in the limitation grounds of the “rights 

and freedoms of others,”34 but also in the provision in 

human rights instruments referred to as the “prohibition 

of abuse of rights.”35 And, third, the underlying thrust of 

non-discrimination throughout human rights instruments underscores that FORB needs to be cognizant of 

non-discrimination on the basis of sex, and women’s 

rights need to be vigilant of non-discrimination on the 

basis of religion (or belief).36

Despite the above, synergies between women’s 

rights and FORB face a number of serious challenges. 

Numerous violations of the rights of girls and women 

continue in the name of religion, or are restricted on the 

basis of religion, whether by state or non-state actors. 

However, we should not confuse violations and restrictions in the name of religion— particularly by state 

actors—and FORB; the two need clear disentanglement 

and this will be addressed in section VI below.

UN Mechanisms

The question of how effective the UN international standards and tools have been in addressing the synergies 

between FORB and the rights of women and girls leads 

us to a variegated response.

It is clear that the international human rights law’s 

suspicion, sometimes even the hostility of human rights 

advocates, lies primarily 

in one direction: that is, 

of advocates of women’s 

rights against FORB. 

Though FORB standards 

have not made specific 

mention of women’s 

equality, the main reason 

for this is that there is no convention and therefore no 

corresponding treaty body overseeing and developing the 

FORB standards. If there had been a standalone human 

rights convention on FORB and a supervising treaty 

body—as in the case of women’s rights and CEDAW—

there is no doubt it would have issued a general comment 

on women’s rights, likely in the late 1990s or early 2000s, 

just as many other treaty bodies did.37 CEDAW, however, 

has had the opportunity to comment on FORB, but has 

not chosen to do so in its 34 general recommendations to 

The very rationale of human 

rights is that rights cannot be 

extinguished or vitiated for the sake 

of particular patterns of conduct.
6 USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES

date. Sally Engle Merry contends that “CEDAW, like the 

rest of the human rights regime, assumes that culture, 

custom, or religion should not condone violations of 

human rights.”38 Taking the “universalizing approach” 

that is structured in the convention itself, Merry speaks 

of the CEDAW committee members presenting “a united 

front against recalcitrant or evasive government representatives” and “uniformly” condemning “injurious 

cultural practices”39 and, by extension, also religion. This, 

in fact, can be traced to CEDAW’s regular conflation of 

(injurious) culture, tradition, and religion as well as its 

very concept of culture. As Merry explains,

There is an old vision of culture as fixed, static, 

bounded, and adhered to by rote juxtaposed to a more 

modern understanding of culture as a process of continually creating new meanings and practices that are 

products of power relationships and open to contestation 

among members of the group and by outsiders. In CEDAW 

discussions, when culture is raised as a problem, its old 

meaning is invoked.

40

Frances Raday goes so far as to state that “the 

clash between culture or religion and gender equality 

rights has become a major issue in the global arena. It is 

probably the most intractable aspect of the confrontation between cultural and religious claims and human 

rights doctrine.”41

The strongest mechanism that FORB has to generate 

new synergies is the mandate of the Special Rapporteur 

on FORB, which came into being in 1986. The mandate 

has raised the question of FORB and women’s equality 

with regularity in reports and communications regarding specific cases. The mandate also has dedicated two 

reports exclusively to FORB and gender.42 These have 

served to champion the importance of women’s equality 

and ensuring that “religion” or FORB are not claimed as 

bases for the violation of women’s rights.

There has not been a reciprocal interest from 

CEDAW or the UN Working Group on the issue of 

discrimination against women in law and practice. In 

fact, any mentions have only highlighted “religion” (not 

specifically FORB) as the basis for the abuse of women’s 

rights. Neither the synergies between women’s rights 

to equality and FORB, nor the intersection of women’s 

claims to FORB, are addressed. In fact, this is part and 

parcel of a broader critique of CEDAW: that the committee needs “a critical methodological countercheck to 

ensure that any gender analysis of individual communications is based on a holistic understanding of alleged 

victims’ multiple identities, rather than essentialist 

understandings of sex/gender.”43

The impact this has had in practical terms is that 

there is a dearth of standards, sources, and jurisprudence addressing intersections and synergies between 

women’s rights to equality and FORB. This runs the risk 

of both inadequate protections and continued tension 

and polarization around this cluster of human rights 

concerns. Considering the range of challenges that arise 

in this sphere, as outlined below, the perpetuation of 

such polarization is increasingly concerning.

Violations That Arise: Women’s Rights/

Religion “Clashes”?

In light of the challenges in examining correlations 

between women’s rights to equality and FORB, it is 

important to highlight the main human rights violations 

that lead to the overall misperception of a necessary 

clash between these rights. The object of this paper is 

certainly not to gloss over these serious human rights 

violations or deflect attention from them.

Such violations are covered in some detail in general comment no. 2844 of the UN Human Rights Committee, as well as in joint general recommendation no. 31 

of CEDAW/general comment no. 18 of the CRC. General 

comment 28 asserts that “inequality in the enjoyment of 

rights by women throughout the world is deeply embedded in tradition, history and culture, including religious 

attitudes.”45 It calls on state parties to ensure that “traditional, historical, religious or cultural attitudes”46 do 

not serve as the basis of justifying “violations of women’s 

right to equality before the law and to equal enjoyment 

of all Covenant rights.”47 In fact, it calls on state parties 

to raise such “traditional, historical, religious or cultural 

attitudes” with the UN Human Rights Committee and 

share with it the measures taken to “overcome” them.48

The joint general recommendation/comment 

addresses “harmful practices,” which are defined as 

practices “grounded in discrimination based on sex, 

gender and age, among other things,” often associated 

with “serious forms of violence” or constituting violence 

themselves and—critically for our topic—they have 

“often been justified by invoking sociocultural and religious customs and values.”49
USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES 7

It is clear from the above that detailed attention to 

the violations against the equality and human rights of 

women is rightly being given. The gravity of these violations remains unchanged whether they are carried out in 

the name of religion, tradition, or custom, or an amalgam 

of these. However, religion is among the asserted grounds 

for women’s rights violations, though this invocation of 

religion may well be covering a range of socioeconomic, 

Harmful Practices

The most prevalent and well-documented of the harmful practices according to CEDAW and the CRC are:50

• Female genital mutilation51

• Child and/or forced marriage: To this the UN Human Rights Committee adds equality in marriage and the possibility to 

“marry freely.” It goes on, “Men and women have the right to enter into marriage only with their free and full consent, 

and States have an obligation to protect the enjoyment of this right on an equal basis.”52 It also calls for the setting of the 

minimum age for marriage to be done “on the basis of equal criteria for men and women. These criteria should ensure 

women’s capacity to make an informed and uncoerced decision.”53

• Polygamy: The UN Human Rights Committee goes so far as to refer to polygamy as “an inadmissible discrimination against 

women” that should be “definitely abolished wherever it continues to exist.”54

• Crimes committed in the name of so-called honor: The UN Human Rights Committee calls on states to ensure punishments 

for such crimes.

• Dowry-related violence55

Other violations impacting the girl child include:

• “Pre-natal sex selection and abortion of female fetuses”56

• Female infanticide57

• “Neglect of girls (linked to the preferential care and treatment of boys)”58

• Trafficking of children59

Other violations concerning women and marriage include:

• Equal rights for women in the custody and care of children, the religious and moral education of children, passing on 

nationality to children and the ownership and administration of property, retaining one’s original family name or choosing a 

new one, and equality during marriage as participating “equally in responsibility and authority within the family.”60

Violations concerning women and divorce or remarriage include:

• Equal grounds in “divorce and annulment ... property distribution, alimony and the custody of children” and equal 

inheritance rights61

• Ensuring the following is addressed by abolishing the relevant laws and eradicating the relevant practices: “States impose

restrictions on remarriage by women as compared to men. Also the right to choose one’s spouse may be restricted by

laws or practices that prevent the marriage of a woman of a particular religion with a man who professes no religion or a

different religion.”62

Other violations:

• Ensuring laws don’t impose more severe penalties on women for offenses than on men.63

• “Regulation of clothing to be worn by women in public”64

• “Practices which may deprive women of their liberty on an arbitrary or unequal basis, such as by confinement within the 

house”65

• “Any legal provision or any practice which restricts women’s right to freedom of movement ... legal or de facto requirements 

which prevent women from travelling”66

• “Access to justice and the right to a fair trial ... [and ensuring] women equal access to legal aid, in particular in family 

matters”67

• Recognition “everywhere as a person before the law”68

• Impact of “poverty and deprivation” on women69

• “Domestic and other types of violence against women, including rape”70

• “Trafficking of women ... forced prostitution ... slavery”71

• The burning of widows72

• Stoning73
8 USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES

traditional, political, and other objectives for states and 

have a tenuous relationship with “religion” as such.

Violations of Women’s Rights and FORB

To begin with, harmful practices by definition constitute 

a denial of dignity and integrity, amount to discrimination, and are imposed on women and children “regardless of whether the victim provides, or is able to provide, 

full, free and informed consent.”74 As such, even if they 

were to be accepted as manifestations of FORB under 

article 18 of the ICCPR, these practices would be subject 

to limitations on such manifestation.

Additionally, not all assertions of FORB can be 

accepted as manifestations of religion or belief. It has to 

be established that the religion or belief itself is of a certain “cogency, seriousness, cohesion and importance.”75

The relationship and nexus between religion or belief 

and manifestation also needs clarifying. Having done 

so, it should also be noted 

that manifestations of 

religion or belief may be 

subject to “such limitations as are prescribed 

by law and are necessary 

to protect public safety, 

order, health, or morals or the fundamental rights and 

freedoms of others.”76 The definition of harmful practices, as defined in the joint general recommendation/

comment, would strongly suggest that since such 

manifestations lead to the denial of dignity and integrity 

and amount to discrimination,77 they should indeed be 

subject to limitation.

Furthermore, the ICCPR also insists that “nothing” 

in the covenant “may be interpreted as implying for any 

State, group or person any right to engage in any activity 

or perform any act aimed at the destruction of any of the 

rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present 

Covenant.”78 Since harmful practices can violate numerous ICCPR rights (see below) the extensive application of 

article 5 is very salient.

ICCPR rights that may be violated by harmful 

practices:

• non-discrimination (article 2)

• equal rights of men and women (article 3)

• right to life (article 6)

• the prohibition of torture (article 7)

• the prohibition of slavery (article 8)

• liberty and security of person (article 9)

• respect for dignity (article 10)

• liberty of movement (article 12)

• due process (article 14)

• equality before the law (article 16)

• privacy, honor, and reputation (article 17)

• equality to marriage, during marriage, and at its

dissolution (article 23)

• the rights of children (article 24)

• equality before the law and equal protection of the

law (article 26)

The above establishes that actions that result in 

harmful practices cannot be seen—in human rights 

terms—as legitimate 

manifestations of FORB. 

Indeed, the assertion of 

any human rights claim 

cannot be utilized to 

extinguish other rights. 

Nor can the assertion of 

one person or group of an individual’s claims be a legitimate basis for the elimination of the rights of others. 

This has succinctly been captured in the often-recalled 

reference in the Vienna Declaration and Programme of 

Action that “all human rights are universal, indivisible 

and interdependent and interrelated.”79

If FORB cannot serve as one of the justifications for 

harmful practices, then what role can it play in responding to harmful practices against women and girls? The 

joint general recommendation/comment recognizes the 

need for integrated vertical and horizontal efforts at the 

national level to “prevent and address all forms of harmful practices.”80 Horizontal coordination is that across 

sections: “including education, health, justice, social 

welfare, law enforcement, immigration and asylum and 

communications and media”; vertical coordination is 

that “between actors at the local, regional and national 

levels and with traditional and religious authorities.”81

The role of religious authorities, leaders, nongovernmental organizations, and communities in preventing and 

addressing harmful practices is well taken. FORB would 

Not all assertions of FORB can 

be accepted as manifestations 

of religion or belief.
USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES 9

expand this to those who mobilize on grounds of belief 

to prevent and address such practices. FORB would also 

support the individual to understand, interpret,82 and 

manifest their religion in harmony with respecting the 

dignity, integrity,83 and free volition of others. FORB 

would further encourage everyone to consider whether 

their religious laws should be forcibly imposed on others, especially others who are unable “to provide, full, 

free and informed consent.”84

The joint general recommendation/comment points 

precisely to this dilemma in state parties with plural 

legal systems, even where there are laws in existence 

that prohibit harmful practices, because such prohibitions “may not be enforced effectively because the 

existence of customary, traditional or religious laws may 

actually support those practices,”85 and due to “prejudices and weak capacity ... among judges in customary and religious courts or traditional adjudication”86

without sufficient review and scrutiny by the state. It 

therefore calls on state parties to repeal all legislation 

that condones, allows, or leads to harmful practices, 

including traditional, customary, or religious laws, and 

any legislation that accepts the defense of honor as a 

defense or mitigating factor in the commission of crimes 

in the name of so-called honor;87 take legislative and 

other appropriate measures to eradicate “all cultural 

or religious practices which jeopardize the freedom 

and well-being of female children”;88 adopt and amend 

legislation in line with 

international provisions; 

and ensure that such 

legislation “takes precedence over customary, 

traditional or religious 

laws that allow, condone 

or prescribe any harmful practice, especially in countries with plural legal systems.”89

To this understanding of harmful practices against 

women and girls we need to add another set of serious 

violations of a different scale and gravity: mass violations such as systematic mass rape against women and 

girls, women and girls forced into slavery, forcible conversion, forced marriage, abductions and other sexual 

violence, enforced dress codes and restrictions on free 

movement, health care, and educational access. These 

are most readily in the news in recent years in light of 

the violations committed by the Islamic State of Iraq and 

Syria (ISIS), but are not unique to them. These violations 

are carried out by these extremist groups in the name 

of religion but by non-state actors. Although horizontal 

and vertical actions recommended tackling harmful 

practices at the national level90 will not operate in the 

same way against these violations in territories where 

ISIS, Boko Haram, al Shabaab, and Al-Qaeda militants/

terrorists are effectively in control. This cross-sectoral 

set of responses and actors will come into play after the 

legal and military actions can ensure sufficient access to 

the victims. Messaging and social media can also play 

a role in preventing fighters and “wives” joining and 

entering the ranks.

FORB and Women’s Equality

We have discussed how the justificatory claim of “religion” in violations of women’s equality needs to be thoroughly disentangled from FORB. We also have discussed 

the legal reasons why FORB as a human right cannot be 

used as grounds for violating harmful practices against 

women and girls, and certainly it cannot provide any 

justification for mass violations. However, can FORB be 

used as the basis for violating other less extreme rights 

to women’s equality? For example: in relation to women’s access to places of worship,91 women’s roles within 

religious communities, or personal status codes that 

restrict their equality or obligatory dress codes—that is, 

practices that are clearly 

short of what might be 

considered to be “harmful practices”? Raday 

refers to these as “lesser 

infringements of their 

human right to equality,” 

clearly to be distinguished from “the most basic of their 

human rights” and where “their very personhood and 

their capability for dissent”92 have been taken from them.

There are certain principles that need to be recalled 

in addressing such dilemmas. It is vital to ensure that 

the right to have, be able to freely adopt and change 

one’s religion or belief, and express or manifest that 

religion or belief according to one’s (possibly evolving 

and changing) understanding should be “guaranteed 

and protected in law and in practice for both men and 

women, on the same terms and without discriminaCan FORB be used as the basis 

for violating other less extreme 

rights to women’s equality?
10 USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES

tion.”93 These freedoms should not be constrained “by, 

inter alia, rules requiring permission from third parties, 

or by interference from fathers, husbands, brothers or 

others.”94 The UN Human Rights Committee is adamant 

that article 18 on FORB cannot be relied upon “to justify 

discrimination against women.” In fact, state parties 

should “provide information on the status of women as 

regards their freedom of thought, conscience and religion, and indicate what steps they have taken or intend 

to take both to eliminate and prevent infringements of 

these freedoms in respect of women and to protect their 

rights against any discrimination.”95

Furthermore, many areas of discrimination involve 

intersectional aspects, and the UN Human Rights 

Committee notes that discrimination against women “is 

often intertwined with discrimination on other grounds 

such as race, colour, language, religion, political or other 

opinion, national or social origin, property, birth or 

other status.”96 Hence, state parties should be cognizant 

of this when seeking to understand such discrimination 

and taking measures to counter its effects. Regarding the 

intersection with minority status, for example, and in 

relation to article 27, the UN Human Rights Committee 

reminds us that the rights minorities enjoy under article 

27 of the ICCPR “in respect of their language, culture 

and religion do not authorize any State, group or person 

to violate the right to equal enjoyment by women of any 

Covenant rights, including the right to equal protection 

of the law.”97 To the contrary, this puts a further responsibility on the state to report on any legislation or practices that such membership may give rise to in relation 

to infringements on the equal rights of women and their 

enjoyment of ICCPR rights.

In relation to the regulation of women’s clothing, for 

example, the UN Human Rights Committee has asked 

state parties to “provide information on any specific 

regulation of clothing to be worn by women in public,” 

as such regulations

may involve a violation of a number of rights guaranteed by the Covenant, such as: article 26, on non-discrimination; article 7, if corporal punishment is imposed in 

order to enforce such a regulation; article 9, when failure 

to comply with the regulation is punished by arrest; article 

12, if liberty of movement is subject to such a constraint; 

article 17, which guarantees all persons the right to privacy without arbitrary or unlawful interference; articles 

18 and 19, when women are subjected to clothing requirements that are not in keeping with their religion or their 

right of self-expression; and, lastly, article 27, when the 

clothing requirements conflict with the culture to which 

the woman can lay a claim.98

Indeed “many women suffer from multiple or intersectional discrimination or other forms of human rights 

violations on the grounds of both their gender and their 

religion or belief,”99 and polarizing questions around the 

human rights to FORB and women’s equality can render 

their cases invisible.

Raday captures the balance to be struck between 

respecting women’s autonomy and not being negligent of the role of the state in these scenarios of “lesser 

infringements” as distinct from harmful practices. She 

argues that the authorities cannot be indifferent to the 

“quality” of women’s consent and that it is incumbent 

upon them to “establish the conditions for genuine, free 

and informed consent.”100 This requires the authorities 

to put in place “a spectrum of measures to create an 

educational and economic infrastructure that will augment women’s autonomy, indeed, that will offer women’s 

autonomy as an alternative.”101

Transcending the Barriers, 

Addressing the Divide

This paper has sought to disentangle “religion” from 

FORB in terms of justificatory claims for restrictions 

on women’s equality, and to discuss each in turn. It has 

noted the scale of the challenge both in terms of the 

perceptions of a clash and as contributing factors that 

lead to violations. This leaves us with the overarching 

objective to seek, instead, to promote synergies between 

women’s rights to equality and FORB.

We have observed that in terms of both its legal 

norms and mechanisms, the UN Human Rights Committee is best placed within the UN system to address 

synergies concerning women, equality, and FORB. 

Indeed the UN Human Rights Committee has been 

able to address women’s equality very effectively in a 

number of its general comments. However, it has not 

yet taken the opportunity to focus attention on synergies between women’s rights to equality and FORB. In 

doing so, the committee could benefit from the groundwork the Special Rapporteur on FORB has done in 

addressing this theme.102 The committee can also play a 
USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES 11

much more consistent role in encouraging state parties 

to consider this interrelatedness, and can bring up the 

interrelatedness and synergies in the constructive dialogue it holds with states and in the recommendations 

it makes to them.

Since CEDAW is the UN body central to tackling 

discrimination against women, it should be encouraged 

to promote synergies between women’s rights to equality and FORB. Although there is no mention of FORB 

in the text of the CEDAW convention, the committee 

can suggest such synergies in its recommendations to 

state parties in response to the constructive dialogue it 

holds with them. In its joint general recommendation/

comment with the CRC on harmful practices, CEDAW 

has started to recognize the importance of a positive role 

for religious authorities103 in contributing to the vertical 

coordination between actors at different levels (local, 

regional, and national) in building a civil society bulwark of prevention and protection against such harmful 

practices. This understanding needs to be expanded to 

better recognize the role religious messaging, religious 

nongovernmental organizations, and FORB itself can 

play in countering harmful practices and in relation to 

mass violations against women in the context of terrorist ideologies. It needs to be better understood that 

becoming religiously or FORB-“literate” and aware in 

this struggle to promote the equality of women is not 

counterproductive and counterintuitive, but rather can 

potentially mobilize positive forces in addressing root 

causes of exploitation and disempowerment. This will 

also assist CEDAW to take on board more intersectional 

understandings in its recommendations to state parties 

as well as in assessing individual communications. A 

joint general comment/recommendation by the UN 

Human Rights Committee and the CEDAW Committee will be able to contribute powerfully to advancing 

this platform, but it should be noted that to date, the 

UN Human Rights Committee has not issued any joint 

general comments.

Much preparation is necessary before the readiness 

and appetite for the promotion of synergies between 

FORB and women’s rights to equality can be realistically 

expected. In the UN, as discussed, the UN Special Rapporteur on FORB and the UN Human Rights Committee 

have most readiness. CEDAW, the CRC, and the UN 

Working Group on discrimination against women in 

law and practice are the actors that may need the most 

encouragement to set aside fears that any synergies 

between FORB and women’s rights to equality may only 

serve to further violate the rights of women and girls. 

Their constituents, too, need this encouragement, and 

the respective civil society communities working for 

women’s rights and FORB need to be brought together 

more effectively. There must be a mobilizing role—

through the hosting of fora and debates—to nurture 

these connections. The UN Special Rapporteur on cultural rights may serve to open up the discussion of traditional and religious values and culture in a way that can 

advance human rights understandings of the necessary 

synergies between these equalities and freedoms.

There are areas of work within the UN and the Organization for Security and Cooperation in Europe (OSCE) 

in relation to preventing and countering violent extremism and promoting security in human-rights-compliant 

ways that bring together concerns for promoting both 

FORB and women’s equalities as conduits for security 

and the prevention of extremism. These have created 

constituents that understand the need for these synergies well. Such understandings for these synergies now 

need to be broadened far beyond the security concern. 

Synergies between FORB and women’s rights to equality are coherent to the human rights project in itself, 

necessary to the protection of both FORB and women’s 

equality, and provide the only way of effectively addressing intersectional concerns in the global community.

Endnotes

1. CCPR/C/21/Rev.1/Add.10, Human Rights Committee, 201900, 

general comment 28, Equality of rights between men and women.

2. See Brice Dickson, “The United Nations and Freedom of Religion,” International and Comparative Law Quarterly 44:2 (1995); 

Arvonne S. Fraser, “Becoming Human: The Origins and Development of Women’s Human Rights,” Human Rights Quarterly 21 

(1999).

3. Article 2.1 of the ICCPR states, “Each State Party to the present 

Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights 

recognized in the present Covenant, without distinction of any 

kind, such as race, colour, sex, language, religion, political or other 

opinion, national or social origin, property, birth or other status.”

4. Article 2.2 of the ICESCR states, “The States Parties to the present Covenant undertake to guarantee that the rights enunciated 

in the present Covenant will be exercised without discrimination 

of any kind as to race, colour, sex, language, religion, political or 

other opinion, national or social origin, property, birth or other 

status.”

5. Note that the 1981 UN Declaration on the Elimination of All 

Forms of Intolerance and of Discrimination Based on Religion or 
12 USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES

Belief expands on the ICCPR and ICESCR language of “religion” 

to clarify that there should similarly be no discrimination on the 

basis of belief. (See its title, the language throughout the Declaration, and article 2(2)).

6. Article 4 of the 1981 UN Declaration on the Elimination of All 

Forms of Intolerance and of Discrimination Based on Religion or 

Belief states: “1. All States shall take effective measures to prevent 

and eliminate discrimination on the grounds of religion or belief 

in the recognition, exercise and enjoyment of human rights and 

fundamental freedoms in all fields of civil, economic, political, 

social and cultural life. 2. All States shall make all efforts to enact 

or rescind legislation where necessary to prohibit any such discrimination, and to take all appropriate measures to combat intolerance on the grounds of religion or other beliefs in this matter.”

7. See Michael Wiener, “Freedom of Religion or Belief and Sexuality – Tracing the Evolution of the Special Rapporteur’s Mandate 

Practice over 30 Years,” Oxford Journal of Law and Religion (2017) 

(forthcoming).

8. Article 1 of CEDAW only defines discrimination against women 

and makes no mention of other grounds of discrimination. It 

states, “For the purposes of the present Convention, the term 

‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or 

purpose of impairing or nullifying the recognition, enjoyment or 

exercise by women, irrespective of their marital status, on a basis 

of equality of men and women, of human rights and fundamental 

freedoms in the political, economic, social, cultural, civil or any 

other field.”

9. Liza Baldez, “The UN Convention to Eliminate All Forms of 

Discrimination Against Women (CEDAW): A New Way to Measure 

Women’s Interests,” Politics & Gender 7:3, 2011: 422.

10. ICCPR, article 3. 

11. ICCPR, article 2(1) states: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within 

its territory and subject to its jurisdiction the rights recognized 

in the present Covenant, without distinction of any kind, such as 

race, colour, sex, language, religion, political or other opinion, 

national or social origin, property, birth or other status.” ICCPR, 

article 26 states: “All persons are equal before the law and are 

entitled without any discrimination to the equal protection of the 

law. In this respect, the law shall prohibit any discrimination and 

guarantee to all persons equal and effective protection against 

discrimination on any ground such as race, colour, sex, language, 

religion, political or other opinion, national or social origin, property, birth or other status.”

12. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 2.

13. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 4 and 

para. 31.

14. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 7.

15. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 8.

16. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 3.

17. Frances Raday, “Culture, Religion, and Gender,” International 

Journal of Constitutional Law 1:4 (2003): 665. 

18. E/CN.4/Sub.2/1999/28, 28 June 1999, Working paper submitted by Ms. Françoise Hampson: “Reservations to Human Rights 

Treaties,” para. 14. 

19. Eric Neumayer, “Qualified Ratification: Explaining Reservations to International Human Rights Treaties,” Journal of Legal 

Studies 36:2 (2007): 399.

20. Article 2 of CEDAW states: “States Parties condemn discrimination against women in all its forms, agree to pursue by 

all appropriate means and without delay a policy of eliminating 

discrimination against women and, to this end, undertake:

(a) To embody the principle of the equality of men and women in 

their national constitutions or other appropriate legislation if not 

yet incorporated therein and to ensure, through law and other 

appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination 

against women;

(c) To establish legal protection of the rights of women on an 

equal basis with men and to ensure through competent national 

tribunals and other public institutions the effective protection of 

women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and 

institutions shall act in conformity with this obligation;

(e) To take all appropriate measures to eliminate discrimination 

against women by any person, organization or enterprise;

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices 

which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute 

discrimination against women.” Article 16 of CEDAW states: “1. 

States Parties shall take all appropriate measures to eliminate 

discrimination against women in all matters relating to marriage 

and family relations and in particular shall ensure, on a basis of 

equality of men and women:

(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;

(c) The same rights and responsibilities during marriage and at its 

dissolution;

(d) The same rights and responsibilities as parents, irrespective 

of their marital status, in matters relating to their children; in all 

cases the interests of the children shall be paramount;

(e) The same rights to decide freely and responsibly on the number 

and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;

(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar 

institutions where these concepts exist in national legislation; in 

all cases the interests of the children shall be paramount;

(g) The same personal rights as husband and wife, including the 

right to choose a family name, a profession and an occupation;

(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and 

disposition of property, whether free of charge or for a valuable 

consideration.

2. The betrothal and the marriage of a child shall have no legal 

effect, and all necessary action, including legislation, shall be 

taken to specify a minimum age for marriage and to make the 

registration of marriages in an official registry compulsory.”

21. United Nations Treaty Collection, ratifications, declarations, 

and reservations to the Convention on the Elimination of All 

Forms of Discrimination against Women, available at https://treaties.un.org.

22. The term “religiously phrased reservations” is used in order 

to indicate that this paper will not be carrying out a theological 

assessment as to the religious legitimacy or necessity of such 

reservations by state parties to CEDAW.

23. CEDAW general recommendations no. 4 and no. 20. Article 

28 of CEDAW deals with the reservations entered into by the state 
USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES 13

parties and declares any reservation incompatible with the object 

and purpose of the convention to be impermissible. “Reservation” 

is defined under article 2 of Vienna Convention on the Law of 

Treaties. See http://www.unicef.org/french/crc/files/Definitions.

pdf. See also: http://www.un.org/womenwatch/daw/cedaw/reservations.htm and http://www.un.org/womenwatch/daw/cedaw/

reservations-country.htm.

24. Examples of religiously phrased reservations to CEDAW 

include: Bahrain: “The Kingdom of Bahrain makes reservations 

with respect to the following provisions of the Convention: ... - 

Article 16, in so far as it is incompatible with the provisions of the 

Islamic Shariah”; and Mauritania: “Having seen and examined 

the United Nations Convention on the Elimination of All Forms of 

Discrimination against Women, adopted by the United Nations 

General Assembly on 18 December 1979, have approved and do 

approve it in each and every one of its parts which are not contrary 

to Islamic Sharia and are in accordance with our Constitution.” 

Taken from: http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm.

25. E/CN.4/2002/73/Add.2, Report of the Special Rapporteur 

Abdelfattah Amor, 2009, Study on Freedom of Religion or Belief and 

the Status of Women in the Light of Religion and Traditions, para. 

237. 

26. E/CN.4/2002/73/Add.2, Study on Freedom of Religion or Belief 

and the Status of Women in the Light of Religion and Traditions, 

para. 221.

27. For detailed discussion see: Heiner Bielefeldt, Nazila Ghanea, 

and Michael Wiener, Freedom of Religion or Belief, An International 

Law Commentary, Oxford, Oxford University Press, 2016.

28. A/68/290, Report of the Special Rapporteur Heiner Bielefeldt 

on freedom of religion or belief, 2013, Addressing the Interplay 

of Freedom of Religion or Belief and Equality between Men and 

Women, para. 70.

29. Frances Raday, “Culture, Religion, and Gender,” International 

Journal of Constitutional Law 1:4 (2003):710. 

30. Frances Raday, “Culture, Religion, and Gender,” International 

Journal of Constitutional Law 1:4 (2003):710. 

31. A/68/290, Report of the Special Rapporteur Heiner Bielefeldt 

on freedom of religion or belief, 2013, Addressing the Interplay 

of Freedom of Religion or Belief and Equality between Men and 

Women, para. 21.

32. Article 1(5) of the Vienna Declaration and Programme of 

Action states, “All human rights are universal, indivisible and 

interdependent and interrelated. The international community 

must treat human rights globally in a fair and equal manner, 

on the same footing, and with the same emphasis. While the 

significance of national and regional particularities and various 

historical, cultural and religious backgrounds must be borne in 

mind, it is the duty of States, regardless of their political, economic 

and cultural systems, to promote and protect all human rights and 

fundamental freedoms.”

33. A/68/290, Report of the Special Rapporteur Heiner Bielefeldt 

on freedom of religion or belief, 2013, Addressing the Interplay 

of Freedom of Religion or Belief and Equality between Men and 

Women, para. 19.

34. Article 5(1) of the ICCPR states, “Nothing in the present Covenant may be interpreted as implying for any State, group or person 

any right to engage in any activity or perform any act aimed at the 

destruction of any of the rights and freedoms recognized herein 

or at their limitation to a greater extent than is provided for in the 

present Covenant.”

35. See also article 17 of the ECHR, which states, “Nothing in this 

Convention may be interpreted as implying for any State, group or 

person any right to engage in any activity or perform any act aimed 

at the destruction of any of the rights and freedoms set forth herein 

or at their limitation to a greater extent than is provided for in the 

Convention.”

36. “Or belief” is put in brackets as a number of international 

human rights instruments only mention “religion” and not “religion or belief” (e.g., article 2.1 of the ICCPR and article 2.2 of the 

ICESCR). However, FORB instruments would suggest “religion” 

should be read as “religion or belief” due to language of article 

18 of the ICCPR and expanded in general comment 22 of the UN 

Human Rights Committee.

37. See, for example, the general recommendation of the Committee on the Elimination of Racial Discrimination, general recommendation no. 25, Gender Related dimensions of Racial discrimination, 2000.

38. Sally Engle Merry, “Gender Justice and CEDAW: The Convention on the Elimination of All Forms of Discrimination against 

Women,” Journal of Women of the Middle East and the Islamic 

World 9:1-2 (2011):54. 

39. Sally Engle Merry, “Gender Justice and CEDAW: The Convention on the Elimination of All Forms of Discrimination against 

Women,” Journal of Women of the Middle East and the Islamic 

World 9:1-2 (2011):54. 

40. Sally Engle Merry, “Gender Justice and CEDAW: The Convention on the Elimination of All Forms of Discrimination against 

Women,” Journal of Women of the Middle East and the Islamic 

World 9:1-2 (2011):56. 

41. Frances Raday, “Culture, Religion, and Gender,” International 

Journal of Constitutional Law 1:4 (2003):665. 

42. A/68/290, Report of the Special Rapporteur Heiner Bielefeldt 

on freedom of religion or belief, 2013, Addressing the Interplay 

of Freedom of Religion or Belief and Equality between Men and 

Women; E/CN.4/2002/73/Add.2, Report of the Special Rapporteur 

Abdelfattah Amor, 2009, Study on Freedom of Religion or Belief and 

the Status of Women in the Light of Religion and Traditions. 

43. Simone Cusack and Lisa Pusey, “CEDAW and the Rights to 

Non-Discrimination and Equality,” Melbourne Journal of International Law 14:1 (June 2013):38.

44. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 4 and 

para. 31.

45. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 5.

46CCPR/C/21/Rev.1/Add.10, general comment 28, para. 5.

47. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 5.

48. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 5.

49. CEDAW/C/GC/31/CRC/C/GC/18, CEDAW and CRC, 2014, 

Joint general recommendation no. 31 of the Committee on the 

Elimination of Discrimination against Women/general comment 

No. 18 of the UN Committee on the Rights of the Child on harmful 

practices, para. 7.

50. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 7.

51. CCPR/C/21/Rev.1/Add.10, general comment no. 28, para. 11. 

Furthermore see: CEDAW/C/GC/14, CEDAW, 1990, general recommendation no. 14, Female Circumcision. 

52. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 23. See 

also CEDAW/C/GC/21, CEDAW general recommendation no. 21, 

1994, Equality in marriage and family relations and CEDAW/C/

GC/29, CEDAW general recommendation no. 29. 2013, Economic 

consequences of marriage, family relations and their dissolution. 

53. CCPR/C/21/Rev.1/Add.10, general comment no. 28, para. 23.
14 USCIRF | WOMEN AND RELIGIOUS FREEDOM | SYNERGIES AND OPPORTUNITIES

54. CCPR/C/21/Rev.1/Add.10, general comment no. 28, para. 23.

55. CCPR/C/21/Rev.1/Add.10, general comment no. 28, para. 10.

56. CCPR/C/21/Rev.1/Add.10, general comment no. 28, para. 5.

57. CCPR/C/21/Rev.1/Add.10, general comment no. 28, para. 10.

58. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 9.

59. CCPR/C/21/Rev.1/Add.10, general comment no. 28, para. 12.

60. CCPR/C/21/Rev.1/Add.10, general comment no. 28, para. 25.

61. CCPR/C/21/Rev.1/Add.10, general comment no. 28, para. 26.

62. CCPR/C/21/Rev.1/Add.10, general comment no. 28, para. 24.

63. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 31.

64. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 13.

65. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 14.

66. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 16.

67. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 18.

68. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 19.

69. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 10.

70. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 11. See 

also: CEDAW/C/GC/19, 1992, CEDAW general recommendation 

no. 19, Accelerating elimination of gender-based violence against 

women, this defines gender-based violence as “a form of discrimination that seriously inhibits women’s ability to enjoy rights and 

freedoms on a basis of equality with men.” (para. 1)

71. CCPR/C/21/Rev.1/Add.10, general comment no. 28, para. 12.

72. CCPR/C/21/Rev.1/Add.10, general comment no. 28, para. 10.

73. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 9.

74. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 16.

75. Campbell and Cosans v. UK, judgment of 25 Feb 1982, Series A 

no. 48, 4 EHRR 293, 40.

76. ICCPR, article 18(3).

77. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 16.

78. ICCPR, article 5(1).

79. Vienna Declaration and Programme of Action, 1993, article 1(5). 

80. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 34.

81. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 34.

82. There is a vibrant literature here, by way of example, around 

Muslim reformist thinking and Jewish family law. Publications 

in this area, for example, include the works of Abdullahi Ahmed 

An-Na’im, Mashood Baderin, and Ayelet Shachar.

83. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 16.

84. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 16.

85. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 43.

86. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 44.

87. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 55(c).

88. CCPR/C/21/Rev.1/Add.10, UN Human Rights Committee, 

2000, general comment no. 28, Equality of rights between men and 

women, para. 28.

89. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 55(b).

90. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 34.

91. For examples of some recent cases, see: https://www.

theguardian.com/world/2016/apr/12/indian-temples-cannotbar-women-rules-supreme-court; http://www.news18.com/news/

india/haji-ali-dargah-to-grant-access-to-women-trust-tells-supreme-court-1304556.html; Case of the Church of Jesus Christ of 

Latter-day Saints v. the United Kingdom (Application no. 7552/09).

92. Frances Raday, “Culture, Religion, and Gender,” International 

Journal of Constitutional Law 1:4 (2003):710. 

93. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 21.

94. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 21.

95. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 21.

96. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 30.

97. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 32.

98. CCPR/C/21/Rev.1/Add.10, general comment 28, para. 13. See 

also: Stephanie Berry, “A ‘Good Faith’ Interpretation of the Right 

to Manifest Religion? The Diverging Approaches of the European 

Court of Human Rights and the UN Human Rights Committee,” 

Legal Studies 35:3 (2016); Karima Bennoune, “Secularism and 

Human Rights: A Contextual Analysis of Headscarves, Religious 

Expression, and Women’s Equality under International Law,” 

Columbia Journal of Transnational Law 45:2 (2006). 

99. A/68/290, Report of the Special Rapporteur Heiner Bielefeldt 

on freedom of religion or belief, 2013, Addressing the Interplay 

of Freedom of Religion or Belief and Equality between Men and 

Women, para. 17. 

100. Frances Raday, “Culture, Religion, and Gender,” International Journal of Constitutional Law 1:4 (2003):710. 

101. Frances Raday, “Culture, Religion, and Gender,” International 

Journal of Constitutional Law 1:4 (2003):710. 

102. A/68/290, Report of the Special Rapporteur Heiner Bielefeldt 

on freedom of religion or belief, 2013, Addressing the Interplay 

of Freedom of Religion or Belief and Equality between Men and 

Women.

103. CEDAW/C/GC/31/CRC/C/GC/18, Joint general recommendation/comment on harmful practices, para. 34.

About the Author

Professor Nazila Ghanea is Associate Professor of International Human Rights Law at the University of Oxford, 

and serves as a member of the OSCE Panel of Experts on 

Freedom of Religion or Belief and on the Board of Governors of the Universal Rights Group. 

She has authored, co-authored and edited numerous academic and UN publications including: the Oxford 

University Press publication Freedom of Religion or Belief: 

An International Law Commentary (co-authored), the 

Bloomsbury publication Religion or Belief, Discrimination and Equality: Britain in Global Contexts (co-authored), the Martinus Nijhoff/George Ronald publication 

Human Rights, the UN and the Bahá’ís in Iran and the 

Human Rights Quarterly journal article Human Rights of 

Religious Minorities and of Women in the Middle East.

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