A/HRC/37/49 State to provide sufficient proof that the aim of such treatment is to achieve a purpose which is legitimate.19 36. The full realization of equality, including with respect to the exercise of freedom of religion or belief, requires States to move beyond tackling “formal discrimination” to achieving “substantive equality”. While eliminating formal discrimination requires removing barriers to ensure that a State’s constitution, laws and policies do not discriminate on prohibited grounds, achieving substantive equality means, inter alia, “immediately adopt[ing] the necessary measures to prevent, diminish and eliminate the conditions and attitudes which cause or perpetuate substantive or de facto discrimination”.20 Furthermore, longer-term measures would be required, that should result in the State undertaking positive steps to ensure that individuals belonging to religious or belief minorities21 are able to enjoy religious freedoms and rights on a permanent basis and equal to members of the majority religion or belief. Thus, as previous mandate holders have stressed, equal treatment is not synonymous with identical treatment. 3. Indivisibility, intersectionality and mutually reinforcing nature of rights 37. Religious discrimination does not only take place when an individual’s right to manifest their religion or belief freely is restricted or interfered with by the State or nonState actors. It can also take place when an individual’s enjoyment of other fundamental rights — for example the right to health, education, expression — is restricted or interfered with by State or non-State actors in the name of religion, or on the basis of a person’s religion or belief. 38. In certain States where religion has been given “official” or privileged status, other human rights of individuals — especially women, persons belonging to religious minorities and lesbian, gay, bisexual, transgender and intersex persons — are disproportionately restricted or vitiated under threat of sanctions as a result of the obligatory observation of State-imposed religious orthodoxy, such as regulation of women’s attire (e.g. the hijab) or the need to conceal one’s non-conforming sexual orientation or gender identity. 39. The Special Rapporteur also notes with concern the increasing trend by some States, groups and individuals, to invoke “religious liberty” concerns in order to justify differential treatment against particular individuals or groups, including women and members of the lesbian, gay, bisexual, transgender and intersex community. This trend is most often seen within the context of conscientious objection, including of government officials, regarding the provision of certain goods or services to members of the public. 40. Such discrimination is most injurious where laws and policies are grounded in the imposition of certain theological prescriptions or worldviews, rather than on justifications accessible to all; especially where there are glaring democratic deficits and also social inequalities along ethnic or religious lines. It should be noted, however, that the jurisprudence of the Human Rights Committee and the regional human rights courts uphold that it is not permissible for individuals or groups to invoke “religious liberty” to perpetuate discrimination against groups in vulnerable situations, including lesbian, gay, bisexual, transgender and intersex persons, when it comes to the provision of goods or services in the public sphere. 41. Of significant note is the frequency at which States’ adherence to faith-based claims affect their capacity to protect the human rights of women. The voluminous religious-based reservations entered by States parties to the Convention on the Elimination of All Forms of Discrimination against Women are one case in point. The breadth of impositions on women’s rights justified by States in the name of religion, including those which limit their 19 20 21 10 See, for example, Human Rights Committee general comment No. 18 (1989) on non-discrimination, para. 13; and Committee on Economic, Social and Cultural Rights general comment No. 20 (2009) on non-discrimination in economic, social and cultural rights. See Committee on Economic, Social and Cultural Rights general comment No. 20, para. 9. See also Nazila Ghanea, “Religion, Equality and Non-Discrimination”, in J. Witte and C. Green, Religion and Human Rights (2011). See A/HRC/22/51.