Washington’s Pending Child Protection Legislation: Unconstitutional!
Georganne Chapin, MPhil, JD
March 17, 2019
The state of Washington has a pending child protection bill before its legislature. While we share legislators’ condemnation of the activity this bill seeks to regulate, we also wish to point out the fact that the bill violates the Constitution of the State of Washington.
Senate Bill 5257, introduced January 15, 2019, would prohibit the practice of “female genital mutilation” or FGM – i.e., the culturally-based practice of pricking, incising, or cutting a minor girl’s genitals. The bill arose, in part, as a response to the November 2018 dismissal by a federal court in Michigan of a case against a physician prosecuted under a similar 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 that case, the judge said that despite the heinous actions of the physician (a woman from an Indian sect that practices female genital cutting), 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.
So, what is wrong with this Washington State bill prohibiting medically unnecessary genital surgery on girls? In three words: it is unconstitutional!
Washington’s Constitution contains a “equal protection” clause which states: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” In other words, Washington’s laws should never favor, protect, or privilege one group over another. While the anti-genital-mutilation law summarized above rightfully protects girls from medically unnecessary surgery on their genitalia, whether carried out in a “cultural” or medical context, it denies through omission such protection to boys.
Should not all children be protected from the medically unnecessary surgical modification of their genitals? Are boys not entitled to the same rights to bodily integrity, autonomy, and self-determination as girls?
“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 with 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,” “be normal,” or “avoid problems in the future.”
It is not known how many girls are subjected to FGM in the United States, but the number is certainly less than one percent. By contrast, more than half of U.S.-born boys – more than one million babies each year – are subjected to the brutal removal of their their healthy, normal foreskins within a few hours of days of their birth.
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.) In the United States, the incidence of routine infant circumcision varies widely by region. At approximately 10 percent for in-hospital circumcisions, Washington’s current circumcision rate is well below the national average.
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 Washington and every other state seeking to redress the ethically and medically unjustifiable practices of genital surgery performed on girls must take notice, to ensure that any new laws be consistent with the “equal protection” clauses of their constitutions, and to protect all children.