Georganne Chapin, MPhil, JD
March 14, 2019
The state of Iowa has two pending child protection bills before its legislature. While we share the legislators’ condemnation of the activities these bills seek to regulate, we also wish to point out the fact that both bills violate Iowa’s state Constitution.
The first bill, House File 299 (together with the related House Study Bill 115) forbids the practice of “female genital mutilation” or FGM – i.e., the culturally-based practice of pricking, incising, or cutting a minor girl’s genitals – and makes it a Class D felony. The legislation arose in response to the dismissal by a federal court in Michigan of a case against a physician prosecuted under a similar 1996 federal law (18 U.S. Code § 116, also known as the Federal Prohibition Against Female Genital Mutilation Act of 1996) for operating on the genitals of three young girls. In dismissing the case, the judge said that despite the heinous actions of the doctor (a woman from an Indian sect that practices female genital modification), the federal law under which she was charged was unconstitutional because the behavior it proscribed falls under the rubric of “local criminal activity,” which is properly regulated by states. It is safe to say that – from the perspective of public opinion – the proposed Iowa law and similar legislative activity taking place in other states are unlikely to meet with much pushback; Americans are rather unified in their revulsion toward “female genital mutilation,” sharing a presumption – even if they are not particularly well-informed about the issue – that this practice is indefensible from either a cultural or a medical standpoint.
The second bill in the Iowa child protection pipeline is more unusual in that it attempts to regulate an activity that is only now becoming a topic of public discussion. House File 576 seeks to prohibit genital modification surgery or “treatment or intervention on the [physical] sex characteristics” of “intersex” minors – defined as children “born with atypical physical sex characteristics including but not limited to chromosomes, genitals, or internal organs….” Because intersex surgery has been and remains the purview of the medical profession, the intersex bill contains extensive detail about the types of surgeries that have been traditionally performed upon children with anomalous genitalia in efforts to “normalize” the appearance of their sex organs toward either the male or female end of the spectrum of visible sex characteristics; it describes in similar detail measures that must be taken to prove medical necessity for such surgeries. The Iowa intersex bill is also noteworthy because it (a) represents only the second time a state has set out to regulate “intersex surgery (the first was California, earlier this year)” and (b) includes extensive language about the rights of intersex people to “participate in decisions about surgery and other medical treatments or interventions on their physical sex characteristics, and to guarantee [them] the rights to bodily integrity, autonomy, and self-determination.” Bravo!
So, what is wrong with these bills? Why are they unconstitutional?
Iowa’s Constitution contains a “laws uniform” clause (similar to an equal rights amendment) which states: “…the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” In other words, Iowa’s laws should never favor, protect, or privilege one group over another. While the two laws summarized above protect girls and intersex children from medically unnecessary surgery on their genitalia, whether carried out in a “cultural” or medical context, they deny these protections to boys.
Should not boys also be protected from the medically unnecessary surgical modification of their genitals? Are not boys entitled to the same rights to bodily integrity, autonomy, and self-determination as girls and intersex minors?
“Routine” infant male circumcision – like “female genital mutilation” – entails the removal of a normal, natural part of a boy’s genitals in the absence of any medical necessity. Sometimes – as in the case of female genital mutilation – male circumcision is performed for “cultural” reasons (I purposely draw no distinction between “culture” and “religion,” as there is simply no justification to favor the practices of groups who can point to a written text over those with a long oral tradition.) And sometimes – just as with intersex surgery – male circumcision is performed simply as a social or cosmetic procedure, justified as in the child’s best interest, helping him to “fit in,” or to “avoid problems in the future.”
“Intersex” is a condition estimated to characterize somewhere between two and three percent of the population.
Possession of a penile prepuce (male foreskin), on the other hand, characterizes nearly half of the population. Until the mid-19th century, surgical amputation of the foreskin was practiced only by Jewish and Muslim people, and by some tribal cultures. Victorian doctors introduced the practice in the United States and other Anglophone countries to stop boys from masturbating. By the mid-20th century, “routine” circumcision had become embedded in American medicine, and still today, the United States is the only non-Jewish, non-Muslim country in the world where doctors routinely remove baby boys’ foreskins (South Korea and the Philippines also have high circumcision rates because of the influence of U.S. military hospitals.) While in the United States the incidence of routine infant circumcision varies widely by region, Iowa’s rate remains among the highest in the nation, at well above 70 percent.
Just as intersex individuals are speaking out loudly against a medical establishment that overlooks individual autonomy in favor of social norms, American men of all ages are expressing indignation about having undergone the removal of their normal, functional foreskins when they were too young to either consent or resist.
Legislators from Iowa and every other state seeking to redress the ethically and medically unjustifiable practices of “normalizing” surgery performed on the genitalia of girls and intersex children need to take notice, to ensure that any new laws be consistent with the “equal protection” or “laws uniform” clauses of their constitutions, and to protect all children.
As I write this, I am in Rotterdam (the Netherlands), where tomorrow Marilyn Milos (from NOCIRC) and I will be attending a meeting on infant circumcision, sponsored by the Royal Dutch Medical Association (KNMG). The KNMG, as well as physician organizations from other European countries, are increasingly adopting the position that circumcising children is a bodily assault and a violation of their rights. Yesterday’s German court decision is excellent—in terms of timing and, of course, substance.
Every website that has posted the news is garnering hundreds, even thousands, of comments, this Huffington Post piece being just one example. On the pro-decision side are those who decry forced circumcision as infringing on children’s rights to bodily autonomy. Those who oppose the German court decision defend infant and child circumcision as the right of parents to practice their religion.
Georganne Chapin, Executive Director of Intact America
One of the functions of law in a civil democracy is to promulgate a uniform code of conduct. In a pluralistic society, when certain religious practices contradict or violate this code, or the rights of one individual or group interferes with or breaches the rights of another, the law (and any court that upholds it) provides guidance and—it is hoped—protects potential victims’ rights by prohibiting any such harmful practices.
There is no question that, but for the “freedom of religion” claim, holding down a baby boy and cutting off part of his penis constitutes a forcible physical and sexual assault, with visible and permanent consequences. Defending this practice by relying on a literal interpretation of a religious text ignores the fact that democratic law—while tolerating diverse beliefs—must protect those who cannot protect themselves. To label, or even suggest, that those who would protect babies from harm are anti-Semitic (or anti-Muslim) is a tactic of pure intimidation.
Another less explicitly religious—but equally problematic—defense of circumcision relies on parental intent. “We do it for the baby’s own good” (so he’ll be cleaner, so he’ll find a wife, so he won’t be laughed at, etc.). Sorry. The fact that parents who seek to have their children circumcised may have “benign” motives is irrelevant if the custom inflicts harm on the child.
Cultures or particular groups of people who favor corporal punishment defend it as a legitimate form of shaping behavior, but the courts in countries that recognize individual rights don’t buy this rationale. Cultures too numerous to mention condone child-beating and wife-beating as a means of encouraging better behavior in the future. Individuals from those cultures can believe what they want, but if they live in the United States, they are subject to U.S. law, and will be prosecuted for child abuse or “domestic violence” if they violate the law. Professed non-malignant motives don’t justify acts deemed to harm others.
A huge exception has been the circumcision of children. In the U.S., the fact that doctors adopted the practice as a way of making money (using a series of spurious and serially discredited medical rationales) has served for too long as a cover for religious groups claiming circumcision as their right under religious freedom.
Let us hope that the advocacy of European physicians to abolish infant circumcision, and the court ruling handed down in Germany this week, will lead to a change of consciousness with regard to the rights of children among American physicians and religious groups. The law will—as always—follow suit.
As an intactivist, I have always described my goal as putting an end to the genital cutting of babies and children who cannot consent. I see this work as incremental, consisting of advocacy, persuasion, education, reason, and – yes – confrontation, such as Intact America’s recent Put Down The Knife! campaign aimed at physicians.
Events that occurred earlier this year in San Francisco, however, made me think seriously about whether I believed “circumcision should be outlawed” – in other words, whether I would support a legislative ban on “routine” (medically unnecessary) circumcision of male infants and children. While most Americans abhor the very thought of female genital mutilation, many simply don’t know that there is a federal law that already prohibits even the most minor cutting of the genitals of a girl under the age of 18. The proposed San Francisco ban was modeled exactly on that “anti-FGM” legislation.
Intact America has not advocated for a legislative ban on circumcision – yet. I believe that before we can reasonably expect routine infant male circumcision to be outlawed, we need greater social and political consensus that it is harmful, and the political power to overcome interest groups who promote their right to carry out the procedure. In the meantime, Intact America and the intactivist movement in general are moving public opinion and parents’ awareness, in the direction of more and more boys being left intact. As this occurs, and as knowledge of the harms of circumcision spreads, we will come closer to the conditions needed to achieve a gender-neutral approach to the genital cutting of children.
However, this doesn’t mean that I wasn’t really impressed and really excited when Lloyd Schofield and others gathered enough signatures in San Francisco to get a limited circumcision ban onto the ballot in that city. Predictable media comments on “those kooky San Franciscans” aside, I thought it was awesome that this local initiative raised the visibility of the circumcision problem to national – and actually international – prominence.
Was there backlash? Of course! And some intactivists have said that the opposition by physicians and religious groups, which ultimately resulted in the measure being stricken from the ballot, means that the initiative was “premature” or – worse – a setback to the progress we have made in recent years.
But I see it differently. I think the backlash is a mark of our progress. The other side is afraid, because they know we are winning, and that their professed right to cut the genitals of babies is being challenged as never before.
Abolitionists didn’t wait for the slaveholders’ permission to call for an end to slavery. Suffragists didn’t wait for women to be recognized as men’s equals before advocating for the right to vote. Dr. Martin Luther King, Jr., didn’t ask if it was ok for him to have a dream of racial equality.
Intactivists do not need anybody’s permission to talk about the American promise of equal protection guaranteed by the 14th Amendment, and why permitting the genital cutting of boys belies that promise.
In a future post, I will talk about challenges that arise in crafting a ban on male child circumcision – in particular, the charge that such a ban would conflict with another American principle: the right to religious freedom.