Povenmire: Parental consent for circumcision (5/6)
Journal of Gender, Social Policy & the Law, Volume 7, Number 1, pages 113-122, 1998-1999.
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
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.
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).
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).
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).
[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.”
Ross Povenmire. Do Parents Have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue From Their Infant Children?: The Practice of Circumcision in the United States. 7 Journal of Gender, Social Policy & the Law 87 (1998-1999).
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