JOURNAL OF GENDER, SOCIAL POLICY & THE LAW, Volume 7, Number 1,
Pages 113-122.


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V. PARENTAL CONSENT UNDER THE FEDERAL CRIMINALIZATION OF
FEMALE GENITAL MUTILATION ACT

        The right of the infant to bodily integrity, the state's interest in protecting the infant from unnecessary genital surgery, and the ineffectiveness of parental consent to such surgery are the fundamental concepts supported by this article. These concepts, far from being radical, have already been incorporated into federal law with respect to females.185 In particular, parents in the United States may not consent to the circumcision, excision, or infibulation of their infant daughters unless the operation is medically necessary.186 What remains to be done, and what must be done to preserve intellectual and constitutional integrity, is to recognize the same rights for infant males.

        Unlike male circumcision, the practice of female genital mutilation ("FGM") is deemed barbaric by western cultures. The United Nations, with the support of the United States and European nations, passed a resolution condemning the practice in 1980.187 In 1996, Congress passed the Criminalization of Female Genital Mutililation Act [hereinafter "The Anti-FGM act"],188 which made it a crime for a doctor to circumcise, excise, or infibulate, “the whole or part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years.”189 In its findings, Congress determined that FGM “infringes upon the guarantees of rights secured by Federal and State Law, both statutory and constitutional,”190 and determined that “Congress has the affirmative power under section 8 of article I, the necessary and proper clause, section 5 of the Fourteen Amendment, as well as under the treaty clause, to the constitution to enact such legislation.”191 Significantly, the findings also include the dubious assertion that FGM “can be prohibited without abridging the exercise of any rights guaranteed by under the First Amendment to the Constitution….”192 Most significantly, in applying the law, “no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that person, or any other person, that the operation is required as a matter of custom or ritual.”193

        This act thus vitiates the authority of anyone, including the parents or the patient, to consent to the genital mutilation of non-adult females. The “guarantees of rights” are deemed so fundamental that the exercise of cultural or religious convictions requiring female genital mutilation194 are simply excluded from consideration under the act. The act is fatally flawed, however, because it provides protection to females and not males. The supposed distinctions between FGM and male circumcision, offered as justification for this unequal treatment, are not exceedingly, persuasive, and therefore contravene constitutional guarantees of equal protection.195

A. Comparing Female Genital Mutilation and Male Circumcision

        Surgical alteration of female genitalia is practiced primarily in North Africa, where an estimated 110 million women are affected by the practice.196 Many Muslims believe that the tenets of their faith require surgery, although this is contested by Islamic scholars.197 The surgery takes different forms, ranging from the removal of the clitoral prepuce to the removal of the entire clitoris and portions of the vaginal opening.198 The surgery often occurs under unsanitary conditions, without anesthetic, and is extremely painful.199 In the United States, the practice is rare or non-existent.200

        In comparison, male circumcision is often practiced in Africa.201 Nelson Mandela, for example, was circumcised as a young man in a tribal rite of passage, which involved the removal of the foreskin with the point of a spear.202 The operation, often conducted under unsanitary conditions and without anesthetic, is extremely painful.203 Scientists have identified the use of the same instruments for a series of circumcisions as creating a significant risk for the spread of AIDS.204 Indeed, the excruciating pain of the operation is one of the essential elements of the ritual. This passage into manhood results in dozens of boys dying each year in South Africa alone, and hundreds more being maimed for life.205 Figures on the number of men circumcised in Africa do not appear to be available, however, perhaps due to a lack of interest or a lack of cooperation from South African officials.

        Some cultures practice more severe forms of circumcision. The Australian and New Guinea aborigines slit the underside of the penis lengthwise from the tip of the penis to the base, conferring on the penis an unusual flattened aspect.206 The Hottentot tribe of Africa practices partial castration, removing one testicle.207 The Ysidi tribe in Yemen strip the skin from the navel to the anus.208 The Masai and Kikiuyu tribes of Africa practice partial circumcision, allowing the lower part of the foreskin to be remain attached in a “bib” of atrophied flesh.209 Numerous cultures practice the gashing or perforation of the penis without removal of the prepuce.210 The former Yugoslavia recently reported the use of circumcision as a form of torture.211

        Whereever genital surgery is practiced, whether in Africa or in the United States, the proponents of the surgery offer similar justifications. These justifications include religious tenets, bodily hygiene, reduction of sexual urges, cosmetic reasons, and long-standing cultural practice.212

        The sponsors of the Anti-FGM Act repeatedly distinguish FGM from male circumcision.213 In order to avoid politically costly resistance by Jewish groups seeking to preserve the practice of circumcision for infant Jewish males, proponents of the Anti-FGM Act placed emphasis upon the supposed distinctions.214 Ethnocentric distinctions between the barbaric practice of FGM, and the “meaningful practice” of Jewish circumcision, facilitated this distinction.215

        Indeed many people in the United States, particularly those of religious faiths, believe that the practice of circumcision is constitutionally protected from regulation because of its association with religious practices.216 In City of Boerne v. Flores, the Supreme Court held, however, that “neutral, generally applicable laws may be applied to religious practices.”217 It is no longer necessary to demonstrate a compelling government interest in order to uphold the constitutionality of such laws,218 although such an interest is present in the case of circumcision. Jewish and Muslim circumcisions constitute only a small fraction of the total practice of circumcision in the United States, and is a practice that is now being questioned in by Jews in America219 and in Israel.220 The inclusion of male infants in the Anti-FGM Act would render it neutral and generally applicable,221 would further a compelling state interest in the protection of the health and constitutional rights of minors, and would not single out Jews or Muslims for unequal treatment under the law.

        The anti-FGM literature, including legal commentary, echoes the assertion of a supposed distinction between circumcision and FGM.222 This position is often linked to a feminist or a blatantly misandrist sentiment.223 The distinction is typically asserted on the basis of the common embryonic origin of the clitoris and the penis.224 The removal of the clitoris, according to this argument, is equivalent to the removal of the penis.225 This assertion ignores the obvious differences in the development of these organs, and the resulting difference is size, function, and morphology.226 The purpose of the comparison is to make circumcision appear insignificant, and therefore, unworthy of serious consideration. By doing so, however, these writers and congressional representatives have abetted the perpetuation of circumcision in the United States, and have done a great harm to millions of United States men.

        Nothing of lasting value is to be gained in an argument over which is worse, circumcision or FGM. Even conceding that certain forms of FGM are more horrific than circumcision as practiced in the United State, this does not diminish the rights of males relative to females. Surely no one would suggest that the mildest forms of FGM should be legalized because they are not as horrific as circumcision. They are both violation of an individual's rights.

B. An Equal Protection Challenge

        The Fourteenth Amendment to the United States Constitution guarantees “equal protection of the laws.”227 Historically, gender based classifications in the law worked to the disadvantage of women,228 and required only the merest “basis in reason” to pass constitutional muster.229 Beginning in 1971, however, such laws have been successfully challenged for failure to afford equal protection.230 There is now a strong presumption that gender classifications, whether favoring men or women or invalid.231 The justification for such gender classifications must be “exceedingly persuasive,” and the burden of demonstrating such a justification rests solely upon the State.232 The gender classification must serve “important governmental objectives,” and must be “substantially related to the achievement of those objectives.”233 The justification “must not rely upon overbroad generalizations about the different talents, capacities, or preferences of males and females.”234

        The Faustian bargain struck by the framers of the Anti-FGM Act is now coming due as people come to understand the hypocrisy of current attitudes toward circumcision.235 The gender based classification under the Anti-FGM Act of the right to bodily integrity and protection from unnecessary genital surgery can find no “exceedingly persuasive” justification. No important governmental objective can be furthered by denying infant males the same claim to these fundamental rights as infant females. Overbroad distinctions between “genital mutilation” and “circumcision” cannot obscure the unconstitutional and discriminatory effect of the Anti-FGM Act.

        A challenge to the constitutionality of the Anti-FGM Act is practically certain the first time an attempt is made to enforce it. A challenge to the Anti-FGM Act in this posture presents obvious difficulties for those working to abolish routine infant circumcision in the United States, because nobody wishes to facilitate the practice of unnecessary genital surgery on females. Nevertheless, patients' rights advocates could justifiable support such a challenge because a ruling approving the constitutionality of the act would deal a serious blow to the rights of infant males, who are overwhelmingly the victims of genital surgery in the United States.236

        The District Court of Appeals for the Eighth Circuit recently turned back an attempt to challenge a prohibition of FGM on equal protection grounds.237 In that case, three plaintiffs challenged a North Dakota law238 modeled on the federal Anti-FGM Act as unconstitutional for lack of equal protection for males and females.239 The court affirmed the lower court's ruling that two of the plaintiffs lacked standing because “they have no personal stake in the outcome of this case, one way or the other.”240 The court also denied standing to the third plaintiff, a mother whose son had been circumcised at the father's request, but without her consent, on the theory that whatever injury the son had sustained was in the past, and no remedy could be ordered by the court to change it.241 The court noted that no claim had been made for damages, which it opined in any case would be barred by the Eleventh Amendment.242 Although an appeal to the Supreme Court is promised,243 the standing issues affirmed by the Eighth Circuit will be difficult to overcome even under the expanded standing doctrine enunciated by the Supreme Court in recent cases.244 A plaintiff search program is now underway by patients' rights groups in an effort to bring forward a test of the Anti-FGM Act unfettered by the standing issues plaguing the North Dakota case.245


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       185. See supra notes 127-131 and accompanying text.
       186. See Criminalization of Female Genital Mutilation Act. Pub. L. No. 104-208, § 645, 110 Stat. 3009, 3009-708 (1996) (codified as amended at 18 U.S.C. § 116) [hereinafter The Anti-FGM Act].
       187. See titles, supra, note 10; see also Convention on the Elimination of All Forms of Discrimination Against Women, GA Res. 34/180, U.N. GAOR, 3rd Comm. 34th Sess., Annex, Agenda Item 75, U.N. Doc. A/RES/34/180 (1980). More recently, the General Assembly passed the Declaration on the Elimination of Violence Against Women (DEVAW), G.A. Res. 48/104, U.N. GAOR, 3rd Comm., 48th Sess., Agenda Item 111, U.N. Doc. A/48/104 (1994). Article 2 of DEVAW includes FGM as an example of violence against women that is covered under the resolution.
       188. See Anti-FGM Act, 18 U.S.C.A. § 116(a) (West 1992 & Supp. 1997) (defining the term female genital mutilation).
       189. Id.
       190. Id. at §§ 645(a)(3), (a)(6) 110 Stat. at 3009-7008.
       191. Id. at §§ 645(a)(3), (a)(6) 110 Stat. at 3009-7008.
       192.Id. at § 645(a)(5). Many Muslims believe that the practice is required under the tenets of Islamic religious law, or Shari'a. This belief is disputed by some Muslim clerics. Kandela, supra note 25, at 41.
       193. 18 U.S.C.A. § 116(c) (West 1992 & Supp. 1997).
       194. Kandela, supra note 25, at 41 and accompanying text.
       195. U.S. CONST. amend. XIV, § 1. See infra Part V.B.
       196. FRAN HOSKEN, THE HOSKEN REPORT 1 (4th rev. ed. 1993). The Hosken Report has been cited extensively in the FGM network as a source for statistics on the practice of FGM in Africa. The World Health Organization estimates between 85 to 114 million girls and women have been affected by the procedure. Reginold Bundy. Legislating Culture? TRI-STATE DEFENDER, Mar. 12, 1997, at 1A, available in 1997 WL 11759356.
       197. See Kandela, supra note 25, at 41 (quoting from the Mufti of Egypt about his position in favor of the Egyptian government's attempt to ban female circumcision, stating "[t]his tradition has no basis in Islamic Law.")
       198. HOSKEN, supra note 196, at 36.
       199. HOSKEN, supra note 196, at 37.
       200. See HOSKEN, supra note 196, at 36 (stating that “not a single case of FGM [is] medically documented in the United States”); see also 142 CONG. REC. S8972-01 (daily ed. July 26, 1996) (statement of Sen. Reid) (asserting that “[w]e have had a report in one California community where there were seven of these practices committed on young women”); Bundy, supra note 196 at 1A (noting that Dr. Michael Rich, Professor of Pediatrics at Harvard Medical School, “admits he hasn't seen a case of [female] genital mutilation conducted in the United States, but he and other doctors were forced to undo the procedure on a pregnant 19-year-old Somalian immigrant”.); Barbara Crossette, Female Genital Mutilation by Immigrants is Becoming Cause for Concern in the United States, N.Y. TIMES, Dec. 10. 1995, at 18 (noting immigrant communities in the United States are alleged to have raised money to bring practitioners of FGM to the United States to perform the procedure). But see Linda Burstyn, Female Circumcision Comes to America, THE ATLANTIC MONTHLY, Oct. 1995, at 28 (suggesting that lack of statistical data on FGM in the United States is due to the secrecy within immigrant communities regarding the practice, coupled with a distrust of western doctors.).
       201. See Andrew Selsky, South African Rite of Passage Scrutinized, FT. WORTH STAR TELEGRAM, Mar. 2, 1997, at 29, available in 1997 WL 4824914 (describing the procedure of male circumcision on adolescent boys in Africa as a rite of manhood); Authorities Probe Three Year Old Boy's Death During Circumcision, AGENCE FRANCE-PRESSE, Jan. 8, 1997, available in 1997 WL 2036828 (describing a botched male circumcision in Egypt); Alec Russell, Ancient Practice of Tribal Circumcision Divides South Africa, THE DAILY TELEGRAPH LONDON, Jan. 23. 1997, at 17 (noting that in one African group initiation rite, “three initiates died, 16 lost their manhood, and 26 had to have intimate plastic surgery”).
       202. See Russell, supra note 201, at 17 (noting that South Africa President Nelson Mandela describes that during the circumcision procedure he felt “as if fire was shooting through…his veins” and “the pain was so intense that …[h]e buried…[his] head in…his chest”).
       203. See Russell, supra note 201, at 17. The author states that:

       [I]t was when the 16th teenager arrived in her ward late last year with gangrenous wounds from a botched circumcision that she [Nurse Ngomane] decided enough was enough. As a Xhosa, she knew women were barred from entering the initiates camps. They are the preserve of the young men who for up to a month after being circumcised daub their faces white, wear blankets and live off a spartant diet.…They [the patients] had staggered from the hills saying that scores more were in agony from infected wounds after a surgeon used the same rusty spear on 80 initiates. Helped by the local police chief…Mrs. Ngomane dragged more than 50 initiates into her car. “It was appalling,” she said. “Their bandages were filty. The stench of rotting flesh was unbearable, and the pain those kids were experiencing was unbelievable.”

Id.
       204. Andrew Selsky, A Journey to Manhood on the Hut of Pain, THE GLOBE AND MAIL, Apr. 19, 1997, at D4.
       205. Andrew Selksy, Circumcision is Still Rite of Manhood in Africa, THE TORONTO STAR, Mar. 8, 1997, at L6, available in 1997 WL 3825490.
       206. See ROMBERG, supra note 15 at 2-3 (describing varying techniques of circumcision based on the traditions of each culture).
       207. See ROMBERG, supra note 15 at 2-3 (explaining that “the motivation for this practice ranges from ‘making the young men better runners’ to preventing the birth of twins.”
       208. See ROMBERG, supra note 15 at 2-3 (concluding that this practice is the most barbaric).
       209. See ROMBERG, supra note 15 at 2-3 (commenting that the lower part of the foreskin hangs atrophied for the rest of the man's life).
       210. See ROMBERG, supra note 15, at 2-3 (including people from the South Sea islands and tribes of Mexico and South America).
       211. See Eric Steiner Carlson, Sexual Assault on Men in War, 349 THE LANCET 129, 129 (1997) (describing the lack of attention paid to sexual assaults on men, including rape, forced homosexual sex between prisoners, castration, and circumcision.
       212. See Klein, supra note 29 (comparing the attitudes toward FGM in Africa with those toward male circumcision in North America). See generally, ROMBERG,supra note 15 (detailing all aspects of circumcision and its effects on both males and females); WALLERSTEIN, supra note 16, (giving a comprehensive and informative document on circumcision and the controversy surrounding the practice).
       213. See Donna Abu-Nasr, Activist Fighting Custom of Genital Mutilation in the United States, PLAIN DEALER, May 27, 1997, at 5F (quoting former Rep. Pat Schroeder, “[FGM is] …not like circumcision for men. It's much like Lorena Bobbit.”) This is presumably intended to imply that FGM is equivalent to penisectomy. Id.
       214. See id. (noting resistance to FGM law by orthodox Jews because they are fearful of a ban on male circumcision.
       215. See Haim Chertok, The Infant Wont' Remember It, But His Father Won't Forget. JERUSELEM POST, Jan. 10, 1997, at 4 (extolling the meaningfulness of the brit [sic] as part of Jewish Family and community life, and accusing detractors of anti-semitism); Francine Klagsbrun, Circumcision May Resemble Genital Mutilation, But It Has Meaning for Jewish Uniqueness, MOMENT, Apr. 30, 1997, at 22 (explaining the Biblical source of circumcision and the covenant with God that results).
       216. See supra text accompanying notes 17-18 (discussing male circumcision as a Jewish and Muslim tradition).
       217. See 117 S. Ct. 2157, 2161 (1997) citing Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 878 (1990)). The free exercise clause of the First Amendment did not prevent the state of Oregon from passing and enforcing a law prohibiting the use of peyote, even though such a law would interfere with the religious practices of Native Americans. Id. The Court declined to apply a balancing test that would have considered whether the State statute effectuates a compelling governmental interest. Id.
       218. See Flores, 117 S. Ct. at 2157; Smith 494 U.S. at 872. The abandonment of a “compelling governmental interest” test drew considerable dissent from four Justices in Smith and stimulated passage by Congress of the (now defunct) Religious Freedom Restoration Act of 1993. 42 U.S.C.A. § 2000bb (1993) See also Hill v. Alabama, 88 So. 2d 880, 885 (Ala. Ct. App. 1956) (holding that the statute prohibiting religious snake handling was constitutional); Tennessee ex rel Swann V. Pack, 527 S.W.2d 99, 109 (Tenn. 1975) (using the “grave and immediate danger” doctrine to hold that the state has the power to regulate ritualized snake handling even when such handling is central to religious practice); c. f. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 221`7, 2226 (1993) (holding that a city ordinance banning animal sacrifice not generally tailored to further a compelling State interest and had discriminatory intent.) But see United States v. Middleton, 690 F. 2d 820, 823 (11th Circ. 1982) (holding that the regulation of marijuana is constitutional against any free exercise of religion challenge). See also Reynolds v. United States, 98 U.S. 145, 166 (finding a state prohibition of polygamy constitutional); Adrienne Bell, The Verdict on Religion: Observers find a Pattern in Two Supreme Court Rulings, CHICAGO SUN TIMES, July 13, 1997, at 61 (analyzing the impact of the Supreme Court's ruling in City of Boerne v. Flores, which declared the Religious Freedom Act of 1993 unconstitutional). DePaul University Law Professor Steven Resnicoff opined that if the State of Illinois decided to “bar circumcision for alleged health reasons,…[t]hat could stand even though Jews believe in circumcision for all males.”). Id.
       219. See Christine Stutz, Dr. Ronald Goldman on Circumcision, BALTIMORE JEWISH TIMES, May 23, 1997, at 14 (commenting on the pain and trauma involved in circumcision).
       220. See Ohad Gozani, International World Bulletin, DAILY TELEGRAPH, May 5 1997, at 12 (addressing that a public campaign to ban circumcision in Israel has begun, led by a group of Israelis who describe the ritual procedure as ‘a primitive and barbaric act’”).
       221. Indeed, unless the act is extended to include males, the Act is vulnerable to an equal protection challenge. See infra Part V.B.
       222. The assertion of this distinction in the FGM legal commentary is in most cases perfunctory, suggesting a lack of serious consideration. See, e.g., Lori An Larson, Female Genital Mutilation in the United States: Child Abuse or Constitutional Freedom, 17 WOMEN'S RTS. L. REP. 237 (1996); see also Hughes, supra note 41 at n. 1. The distinction between circumcision and FGM is also commonly expressed in the popular press. See Welcome Intolerance for Torture, ST. PETERSBURG TIMES, Jan. 3, 1998 (reporting that FGM is different than circumcision); Letters to the Editor, SAN FRANCISCO EXAMINER, Jan. 3. 1998, at A18 (stating that FGM is equivalent to castration, not circumcision.); Letters to the Editor, THE TORONTO STAR, Mar. 20, 1997, at A26 (paralleling FGM with circumcision); Kimberly Wilmot, Political Asylum Helps Woman to Escape Circumcision, THE PLAIN DEALER, Jan. 7, 1997 at 4E (asserting that the allowance of asylum based on FGM is due to a growing awareness that FGM is not the same as male circumcision); Lawmakers Take Steps to Ban FGM, STATE J. REG., Feb. 7. 1997, at 6 (stating that FGM is different than circumcision); On Female Circumcision, JAKARTA POST, Apr. 17, 1997 (reporting FGM as the equivalent to male castration); Letters to the Editor, INDIANAPOLIS STAR, July 16, 1997, at A9 (stating that “[m]any men experience increased pleasure during the sex act because the sensitive tip of the penis is exposed. This is quite the opposite in the Egyptian practice on women.” [Ed. note, this is completely incorrect, as the sensitive tip of the uncircumcised penis is fully exposed upon erection.].); Editorial, PORTLAND PRESS HERALD, June 27, 1997, at 12A (arguing that “[u]nlike male circumcision, which may have have medical utility and was commanded for Jews in the Old Testament, FGM is practiced solely in the belief that it curbs women's sexual desires”).
       223. See HOSKEN, supra note 196, at 46-47. (arguing that “rape and sexual assault of women would be eliminated by penisectomies - which would be a very great benefit to all societies“).
       224. HOSKEN, supra note 196, at 46-47.
       225. HOSKEN, supra note 196 at 46-47. Many writers assert an equivalence between clitoridectomy and “castration”. Castration involves the removal of the testicles and is therefore more analogous to the removal of the ovaries in women. Id.
       226. The absurdity of such a facile argument is obvious when one considerers that it is approximately equivalent to saying that the removal of a man's nipples is the same as the removal of a woman's breasts, since both developed from the same embryionic structures.
       227. U.S. CONST. Amend XIV, § 1.
       228. See Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (finding that because of societal stereotypes of women, statutes were laden with distinctions between the sexes, which through much of the nineteenth century, put women at a great disadvantage).
       229. See Goesaert v. Cleary, 335 U.S. 464, 466 (1948) (applying the reasonable basis standard to a challenge against a public law barring all women opportunities in the bartending field).
       230. See Reed v. Reed, 404 U.S. 71, 73 (1971) (challenging a statute which provided that as between persons equally qualified to administer estates, males must be preferred to females); see also; Kirchberg v. Feenstra, 450 U.S. 455 (1981) (challenging a husband's unilateral right to dispose of property without the wife's consent); Stanton v. Stanton, 421 U.S. 7, 8 (1975) (challenging the statute which based on differences between the sexes, designated that girls attain majority at age 18 and boys at 21).
       231. United States v. Virginia, 518 U.S. 515, 541-42 (1996); 518 U.S. 515; J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).
       232. See Virginia, 518 U.S. 515, 531 (citing Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982)).
       233. See id. (quoting Wengler v. Druggist Mutual Ins. Co., 446 U.S. 142 (1980).
       234. Id.
       235. See Parker, supra note 39, at D1 (stating that “[f]or thousands of years, young males have been subjected to what amounts to genital mutilation for ‘medical reasons that have been largely disproved by modern science.”; see also Rick Ansorge, An Agonizing Choice, CHI. TRIB., Mar. 7 1997, an 7 (contrasting that in recent years, more activists have spoken out against circumcision…"); Sharon Lerner, Rite or Wrong? As the U.S. Law Against FGM Goes Into Effect, African Immigrants Debate an Ancient Custom, THE VILLAGE VOICE, Apr. 1, 1997, at 44 (describing Africans challenging the practice of circumcision in the United States as the equivalent to Americans challenging FGM); Letters to the Editor, TORONTO STAR, Mar. 20, 1997, at 26 (stating that male circumcision should be equated with FGM); Letters to the Editor, DES MOINES REG., July 8, 1997, at 6 (challenging the inconsistency of views in the United States regarding FGM and male genital mutilation).
       236. See William E. Brigman, Circumcision as Child Abuse: The Legal and Constitutional Issues, 23 J. FAM. L. 337, 337 (1984) (noting that approximately 89% of all males are circumcised within hours of birth).
       237. Fishbeck, 115 F3d at 580.
       238. N.D. CENT. CODE § 12.1-36-01 (1997)
       239. Id. Two of the plaintiffs, Jody McLauglin and Duane Voskuil, had been involved in the original drafting of the legislation which had included protection for males as well as females. The protection for males was dropped as a political concession to passage of the Act. News, STAR-TRIB., May 19, 1997, at 7A. The equal protection flaws in the North Dakota statute and a similar statute passed in Minnesota have been identified by others. See James G. Dwyer, The Children We Abandon: Religious Exemptions to Child Welfare and Education Laws as Denials of Equal Protection to Children of Religious Objectors, 74 N.C.L. REV. 1323, 1324 (1996) (arguing that statutorily exempting “religious exemptor” parents from generally compulsory child care in the name of free exercise of religion infringes upon the child's equal protection rights).
       240. Fishbeck, 115 F. 3d at 580.
       241. Id.
       242. See id. (passing on a decision of whether the Eleventh Amendment would bar relief because the case is dismissed for lack of standing.).
       243. See Maura Lerner, Federal Ruling Dashes Hopes of Circumcision Opponents, STAR-TRIB., June 5, 1997, at 03B (discussing the effect of the federal ruling in Fishbeck on the hopes of circumcision opponents).
       244. See Raines v. Byrd, 117 S. Ct. 2312, 2322 (1997) (holding that members of Congress who challenged the constitutionality of the line item veto did not have a sufficient personal stake in the dispute to establish standing); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (holding that environmental organizations lacked standing to challenge a joint regulation promulgated by the secretaries of interior and commerce because they failed to demonstrate injury and redressibility). The court in Lujan commented that:

[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered “injury in fact”-an invasion of a legally protected interest which is (a) concrete and particularized…and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’.…” Second, there must be a causal connection between the injury and the conduct complained of.… Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”

       245. National Organization to Halt the Abuse and Routine Mutilation of Males (NOHARMM), (visited Oct. 7, 1998) <http//www.eskimo.com/-gburlin/noharmm> The author stated:

[A]ny adult may file suit against those who harmed him either within one year of the actual harm or within one year after realizing such harm. We seek a class action suit declaring the right of a child to be protected from circumcision is superior to a parent's right to consent to such surgery. The plaintiffs in such a case need to be one or more circumcised young men (age 16-17) who can file suit within one year after turning 18. The defendants in the case could be a doctor, a hospital, or even willing parents. Potential plaintiffs seeking legal referrals may contact NOHARMM.

Id.


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