Genital alterations: hypocrite legislations?
By Orianne Lazerat, student enrolled in her second year in the Sciences Po double degree with Sorbonne Université.
Multiple terms exist to describe what I will personally call “genital alterations”. It is common knowledge that female genital alterations (FGA) are described as “mutilations” in international legal body and at the national level. However, as this term implies a genital destruction without medical need, it ignores the cultural and religious meaning of such procedures (Davis, 2001). According to this cultural ground, women described as “mutilated” may therefore feel stigmatized (Duivenbode, 2018), as a woman interviewed by Brian D. Earp, associate director of the Yale-Hastings Program in Ethics and Health Policy at Yale University stated it: “In my opinion, the word ‘mutilation’ used in reference to [what happened to me] is a degrading and disempowering term that strips women of their dignity and self-worth” (Earp, 2019). Moreover, genital alterations embody a variety of surgeries, including ones without long-term physical or psychological harms, and the term “alteration” is useful to better distinguish such procedures depending on the degree of harm and their types. Concerning the term “circumcision” or “cutting”, applying it equally to male, female and intersex children could lead to a trivialization of the horrors of such procedures in some cases (Davis, 2001). Thus, the neutrality of the term “alteration” and its ability to be applied to every gender makes it a relevant choice for this paper. The terms “female genital mutilation” (FGM) or “male genital circumcision” (MGC) will only be used instead of FGA and male genital alterations (MGA) respectively when their proponents are mentioned.
This article intends to question the difference of legal treatment between criminalized FGA and lawful female genital cosmetic surgeries (FGCS), intersex genital alterations (IGA) and MGA. As Brian D. Earp puts it, “specific moral principles currently used to justify a ‘zero-tolerance’ stance on FGM are not being applied consistently to analogous practices, more popular in Western countries” (Earp, 2016). Western nations, also designated as global North nations, are here understood as the Occidental societies, regions and states located in Europe, North America and Australasia.
Laws are fundamental ways for societies to express, manipulate and enforce moral codes as they manage to shape societies’ beliefs and perceptions of morality (Bilz, Nadler, 2009). Consequently, it seems obvious that Western laws implement a certain vision of morality with regards to genital alterations. Therefore, following an analyzed description of the current legal framework of FGA, FGCS, IGA and MGA (I), I intend to tackle this issue and to explain why the different legal treatment of genital alterations is unjustified and culturally biased (II) before presenting a potential more inclusive legal framework (III).
In order to deal with this legal framework inconsistency issue, I will focus on the analysis of two legal sources: the enacted “STOP FGM Act of 2020”, which has entered the American public law on January the 5th of 2021 and is legally binding; and the Division 9 dealing with “FGM” in the Australian Model Criminal Code, which is a draft made by the Standing Committee of Attorneys General in 2009. The purpose of this text was to become a law of a State or Territory, and certain of its provisions have been retained by Australian States, including the ones concerning “FGM”. Those two legal sources, as I will show it later, both represent Western cultural biases, emanating from the dominant culture of the global North, and arguments raised by opponents of FGA and proponents of other genital alterations.
I – A various Western legislative framework
The western legislative framework tackles a range of four types of genital alterations.
First, female genital alterations, generally defined as mutilations. According to the World Health Organization (WHO)’s definition, “FGM” involves the partial or total removal of external female genitalia or other injury to the female genital organs for non-medical reasons. They are divided in four types (WHO classification): type I is the cutting or removal of the clitoral hood, type II is the cutting or removal of the labia minora, type III, most severe form, means the narrowing or stitching of the vaginal opening, also known as infibulation, and the last type refers to “all other harmful procedures to the female genitalia for non-medical purposes, for example pricking, piercing, incising, scraping and cauterization”. Today, it is estimated that more than two hundred million girls and women alive have undergone FGA all over the world, from Asia to North America and each year, thirty million of younger than fifteen-year-old girls could face this operation. Furthermore, FGA imply a deep health concern as their potential sanitary consequences are various, from excessive bleeding to urinary problems and increased risk of vaginal infections. Currently, FGA as defined above are criminalized in international law and in about 60 countries, notably Western ones, for multiple reasons. First, they are considered as a violation of human rights according to the Treaty Monitoring Bodies, committees of independent experts which monitor implementation of the core international human rights treaties. They recognize that “FGM violates a range of rights including inter alia women’s rights, children’s rights, freedom from discrimination, freedom from violence, the right to health, the prohibition of torture and cruel, inhuman and degrading treatment, rights related to marriage and family, right to an effective remedy, and the right to education and information” (Khosla and al., 2017). Those rights are defined by numerous international human rights treaties, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), the Convention Against Torture (CAT), the Convention on Human Rights (CHR), the International Covenant on Civil and Political Rights (ICCPR) and the Maputo Protocol which dedicates its fifth article to the criminalization of “FGM”.
Second, female genital cosmetic surgeries (FGCS), entirely lawful among Western legislation, involve different practices: labiaplasty, clitoridectomy or clitoral hood reduction, perineoplasty, vaginoplasty or vaginal rejuvenation, hymenoplasty, vulval lipolasty, piercing, tattooing and liposuction. It appears that FGCS and FGA share many common features in terms of operations and types of surgical act in themselves. Such surgeries, typically practiced in adulthood but gradually more on adolescents, for reasons as wide as physical discomfort, appearance concerns or psychological distress, are commonly and increasingly performed in North America, Australasia and Europe. For example, according to the American Society for Aesthetic Plastic Surgery, between 2014 and 2018 the proportion of labiaplasty more than doubled. Besides, their health consequences, from bleeding to infection, scaring, dyspareunia, pain and psychological distress, resemble the sanitary impacts of FGA on women.
Third, FGCS echo the surgeries on intersex children, who are born with characteristics that do not fit typical binary notions of male or female bodies and represent between 0.05% and 1.7 % of the population according to the United Nations Human Rights Office of the High Commissioner (UNHROHC). Intersex genital alterations (IGA) are defined by StopIGM.org as “feminizing” or “masculinizing” a child’s genitalia with “corrective” genital surgeries, sterilizing procedures, imposition of hormones (including prenatal “therapies”), forced genital exams, vaginal dilations, medical display, human experimentations, selective (late term) abortion and denial of needed health care. Such surgeries find their justification in cultural and gender norms, discriminatory beliefs about intersex people and supposed health benefits, physical or mental – for example, the prevention of later discrimination among society. However, IGA, typically practiced during infancy, are recognized to cause lifelong severe physical and psychological suffering such as permanent infertility, incontinence and loss of sexual sensation. Among the Western world, the first law prohibiting IGA on minors without their informed consent is the “Gender Identity, Gender Expression and Sex Characteristics Act” enacted in Malta in 2015. Another promising legislative achievement is the resolution adopted by the Californian Senate in 2018, condemning firmly the generalization of IGA. However, despite the recommendations of international law, such as the 18th general recommendation of the CRC, criminalizing prejudicial practices on children, most Western national legislations either ignore intersex persons or allow IGA, as the French legislation shows it. This is partially explainable by the non-legally binding character of most international laws, which are therefore unable to force States to comply with international legislation concerning IGA.
Finally, male genital alterations (MGA) are also classified in four types: type I, most common, is the excision of part or all of the skin of the prepuce, known as “circumcision”, type II is the excision or injury to the glans and/or penis shaft, type III, most severe and less practiced, involves the excision or destruction of the testes and type IV refers to any other procedure falling under the MGA definition. It is estimated that six hundred and fifty million boys have undergone MGA and thirteen million are at risk of facing them each year. Newborn MGA are accepted procedures among Western countries, under the claim that they can be medically beneficial and that they are not purely cultural or religious procedures, referring specifically to Jewish tradition. The British Medical Association “opposes unnecessarily invasive procedure” but “does not have a policy on the ethics of male circumcision for religious or cultural purposes” and considers “MGC” to be “morally neutral”, allowing it “with appropriate consent from parents or a person lawfully exercising parental responsibility” (Davis, 2001).
II – An unjustified diversity of legal frames
1. The Western legal cultural bias
First, focusing only on anti-FGA laws in the global North reveals that these laws emerge from Western cultural biases. Culture is defined as dynamic and global norms and values associated with groups of interconnected individuals, and laws are tools to implement or symbolize culture among societies. Anti-FGA Northern laws implicitly assume a cultural distinctiveness between Western culture, considered as standard, and other cultures, presumed as inherently inferior (Cotton, 2010). Even though FGA have obvious cultural and religious dimensions, as they stand for transitions between childhood and adulthood or rituals of purification and full acceptance in communities, such as in Islamic ones in Southern Thailand (Shavisi, 2019), they can also embody the desire to temper women’s sexuality which rather rely on social custom than on cultural or religious matter. Therefore, the concern here is the cultural reification made by Westerners that ranks distinct cultures from backwardness to progressiveness, (Cotton, 2010) without nuancing FGA’s typology (Shavisi, 2019).
Second, the Western cultural biases raised have significant implications towards the over-criminalization of FGA and the total absence of consideration for MGA. Let’s start our reflection with an example of the Western legal situation. In the section 5.1.39 of the Australian Model Criminal Code entitled “Exception – medical procedures for genuine therapeutic purposes”, it is stated that “(1) it is not an offence under this Division to perform a medical procedure that has a genuine therapeutic purpose” and “(2) the fact that a procedure is performed as, or as part of, a cultural, religious or social custom is not to be regarded as a genuine therapeutic purpose.” Identically, in the section 116 of title 18 of the American STOP FGM Act, the subsection (c) is amended as follow: “It shall not be a defense to a prosecution under this section that female genital mutilation is required as a matter of religion, custom, tradition, ritual or standard practice.” In both those Western legislation, FGA are reduced to their cultural and religious dimensions, even though they don’t only rely on that, and more importantly, MGA are totally ignored and thus legalized, despite the fact that they are fundamentally linked with culture and religion. MGA are biblical injunctions in Judaism (Davis, 2001) and therefore are regarded in some groups as an explicitly religious practice. Moreover, the procedure is depicted as deeply sexist as it is only available for boys, who are the only ones allowed to be purified and to enter in a community of men (Davis, 2001). Finally, MGA are part of a social custom as they can also be used to reduce male’s capacity for sexual pleasure (Shavisi, 2019). Taking all this into account, how could the incoherent distinction between FGA and MGA be explained? The cultural bias argument seems relevant here. As the Western world is very influenced by Christian’s values, it has a certain familiarity with Jewish traditions, including MGA (Darby, 2016): hence, MGA practiced for ritual reasons are tolerated as they are practiced among integrated religious communities (Guyon, 2021). Moreover, FGA are in majority practiced in Southern countries, whereas MGA are common practices not only in Southern countries but also in the United States, which represent the most dominant culture (Earp, 2016). As the Sudanese surgeon and women’s health rights activist Nahid Toubia depicts it, “this historical situation has made it easier to vilify and condemn what is common in Africa and sanctify what is popular in America.”
Third, the Western cultural bias also applies to the different legal treatment of FGA and FGCS. As I have demonstrated in the first part, FGCS resemble extremely to FGA in terms of surgical procedures, and such anatomical resemblance is also raised by the Royal College of Obstetricians and Gynecologists (Ahmadu, 2016). Furthermore, FGCS are considered as an exception falling under the “Exception – medical procedures for genuine therapeutic purposes” of the Australian Criminal Model Code as they aren’t considered as “cultural, religious or social custom”. However, FGCS are fundamentally motivated by Western social custom and sociocultural norms which define the normality and desirability of vulvas (Shavisi, 2019). Those norms are deeply rooted with the patriarchal nature of Western societies, “in which men dominate, oppress and exploit women” (Earp, 2016), notably by imposing their views of what feminine sexuality should look like. Thanks to digital communication, images and pornography, those sociocultural norms are spread among Western women, according to the Royal Australian College of General Practitioners. Consequently, it seems quite hypocrite that FGCS are legal even though they are characteristic of Western social and cultural norms, when FGA, symbols of non-Western cultures, are criminalized. An explanation to this incoherence could be that FGCS actually have a “genuine therapeutic purpose” stated in the Model Criminal Code for example. Here, the advantage of such a broad term as “genuine therapeutic purpose” is that it can embrace all kinds of medical enhancement, including the ones concerning mental health, to which FGCS are often portrayed to be beneficial (Shavisi, 2019). This argument was raised by the psychiatrist Dr. Veale to support a white 33-year-old woman seeking for a clitoridectomy because she couldn’t stand her genitalia that she disliked genuinely. Dr. Veale stated that the woman complied with law considering her psychological reason to seek for genital surgery. But as White women and girls undertaking FGCS, non-Western women and girls consider the FGA they undertake as aesthetically improving surgeries, which are necessary to the correct balance of their mental health (Ahmadu, 2016). Thus, it appears quite hypocrite that in the case of Western genital surgeries, the argument of mental health can be raised as an exception to allow FGCS, whereas in the case of non-Western FGA, this argument is immediately taken for invalid.
Lastly, a supplementary obvious Western cultural bias concerns IGA. The Australian Model Criminal Code states in the subsection “Exception – sexual reassignment procedures” that “(1) it is not an offence under this division to perform a sexual reassignment procedure” and “(2) a sexual reassignment procedure means a surgical procedure to give a female, or a person whose sex is ambivalent, the genital appearance of a particular sex (whether male or female)”. The cultural binary bias is here obvious: the formulation “whether male or female” explicitly reveals the mostly Western cultural conception that only two sexes and genders exist: male or female. Therefore, the surgical normalization of intersex children genitals conforms to a perceived gender binary (Earp, 2017) that is reinforced through different legal texts, as in the 388th article of the French civil code (Vialla, 2021). Even though Western laws progressively evolve towards more and more openness concerning the gender binary, as it is now allowed for Australian or Canadian non-binary persons to mention their sex as “unspecified” or “unassigned”, IGA are still allowed (Batista, 2021). It is therefore obvious that, as for FGA, IGA suffer from Western cultural implementation through legislation.
2. What health benefits and medical safety?
Let’s now take into consideration the supposed health benefits and medical safety of
MGA and FGCS compared to FGA.
First, it is often argued by MGA proponents that male circumcision has health benefits, as the American Academy of Pediatrics (AAP) stated it in 1989, on the contrary to the practice of “FGM [which] causes [its victims] to suffer grave physical and psychological harm” according to the subsection 2 of the second section, “Congressional findings and purpose”, of the STOP FGM Act of 2020. However, it has never been proven that MGA are less painful, traumatic and dangerous than FGA (Ahmadu, 2016). Diving deeper into the study of the AAP’s arguments shows that MGA do not actually have so prominent medical benefits. For example, it is argued that MGA protect children against urinary tract infections (UTI), but the Canadian Pediatric Society found that “the incidence of complications of circumcision approaches or exceeds the incidence of UTI among uncircumcised male infants”. Identically, the American Cancer Society assumed in 1996 that “routine circumcision should not be promoted as a means of preventing penile cancer”. Moreover, each surgery presents risks, even the most minor ones, including MGA, and the assumption that Jewish performers of circumcisions practice MGA without jeopardizing children is very difficult to acknowledge (Davis, 2001). It is also untrue that all types of FGA cause immediate and long-term health consequences: for example, pricking or piercing, among the most common forms of FGA, are almost painless, on the contrary to infibulation, which is the less practiced form of FGA. In addition, FGA can be medicalized procedures, performed by a doctor with sterile equipment, and be less severe than MGA as it is the case in the small Muslim sect Dawoodi Bohra, practicing “khatna” on boys and girls, which is less invasive for the latter than the former. (Earp, 2019).
Second, a common argument raised to justify FGCS and to criminalize FGA is the health and medical safety of the first procedure. This is seeable through the medicalized terms “medical procedures”, repeated twice, and “genuine therapeutic purpose”, in the section 5.1.39 of the Australian Model Criminal Code. These terms imply that FGCS are medically safer than FGA, as they are performed in clinical and sanitized settings, whereas FGA are often thought to be done in unsafe conditions, among “obscure, dirty parts of a dark Africa with rusty knives and razor blades” (Ahmadu, 2016). This stereotypical assumption raises a couple of issues. Primarily, it denies that FGCS can be performed in minimally regulated and non-clinical environments such as “cosmetic” genital piercing in piercers offices. Moreover, it is important to note that medicalization does not eliminate nor even always reduce the risk of complications. Finally, as FGCS and FGA are very identical procedures, the risks they provoke among women and girls undertaking them are very similar (Shavisi, 2019).
Consequently, the argument of FGA as unhealthy and medically unsafe procedures, which justifies their criminalization, seems quite fragile with regards to the same unhealthy and possible unsafety of MGA and FGCS.
3. Pain and violence in question
The pain and violence of FGA are very often assumed as reasons to make those practices illegal, on the contrary to MGA, FGCS and IGA. Focusing on the vocabulary used in the STOP FGM Act is very indicative of the stereotyped violence of FGA and the implicit denial of the violence of other genital alterations. Such terms as “female genital mutilation”, “human rights violation”, “child abuse” “violence against women and girls”, “FGM is a global problem”, “the United States of America should [lead] the way in the international community in banning this abhorrent practice”, “FGM is a heinous practice that often inflicts excruciating pain on its victims and causes them to suffer grave physical and psychological harm”, depict perfectly how violent and harmful FGA are considered in Western legislation. This consists of a complete ignorance of the pain felt by other altered children, whether they are male or intersex. The feeling of pain for newborns has been medically and scientifically recognized, identically to the memories and lasting effects of such pain. Besides, MGA are rarely performed with analgesia or any other pain control (Davis, 2001), and it can be a lethal procedure: for example, in South Africa in 2013, nearly 80 teenage boys died from their traditional circumcision initiations (Earp, 2016). Eventually, it is also common that male, female or non-binary adults having undergone a childhood genital alteration see this operation as harmful and as a violation of their physical integrity and sexual autonomy rights, which clearly suggest that the criminalization of FGA only on the basis of the violence and pain of such procedures is ignoring the violence and pain of other genital alterations.
4. Ethics of consent
Last but not least, one of the main arguments raised by opponents of FGA is that they are performed on non-consenting girls, whereas FGCS are freely chosen. However, this might not be totally accurate. To begin with, as a large majority of non-Western genital cutting rites are performed during puberty, they allow the child to enter into adulthood. Thus, it is a deeply necessary process that many African women are willing and consenting to undertake (Earp, 2016). Additionally, the consent of women, and an increasing number of teenage girls, to FGCS is highly questionable. As the Sierra-Leonean American anthropologist F. Ahmadu puts it, “what free choice is there from a White woman or girl perspective brainwashed by the white male patriarchy?” (Ahmadu, 2016). Concretely, this means that among Western societies, women’s and girls’ decisions are actually undermined by the patriarchal culture I have mentioned earlier. Furthermore, concerning teenage girls, their consent to the procedure is even more questionable than consent of women because of their lack of maturity and of the ethical issue of giving a legitimacy to their parents for consenting to a medically unnecessary procedure. The Australian Model Criminal Code reveals the incoherence of Western legislation concerning consent in the section 5.1.34 entitled “Prohibition of female genital mutilation”: “(2) It is not a defense to a charge under this section that the person on whom the female genital mutilation was performed, or a parent of that person, consented to the mutilation”. Here, if the legal terms were to be understood as they are explicitly written, FGCS and FGA should both be considered illegal, as the consent to the surgery is not to be taken into account; yet FGA are the only criminalized procedures in Australia.
Finally, there is a deep legal blank concerning male and intersex children’s consent to MGA and IGA. In the section 5.1.37 of the Australian Model Criminal Code entitled “Exception – sexual reassignment procedures”, the question of consent of the children or the age at which the procedure should be performed is not mentioned. This appears even clearer when considering the style of redaction of the article: all verbs are on the passive form and the “person” who undertake the IGA is never evoked as subject, but is rather always object of the procedure: “it is not an offence under this Division to perform a sexual reassignment procedure or to take a person, or arrange for a person to be taken, from this jurisdiction, with the intention of having such a procedure performed on the person”. Besides, it is sometimes argued that parents or legal guardians of the child have a legal right to consent for genital alterations surgeries on minors. Nevertheless, this appears ethically debatable as the Bioethics report of the French National Assembly states it. This report raises that medical practitioners are often uncapable of providing exhaustive information to the parents concerning the benefits and risks of IGA, which questions their legitimacy to choose for their child to undertake such surgeries. Plus, the impossible justification of the consent of parents to IGA obviously also applies to MGA, not only because male infants can’t give their explicit consent to such an act, but also because the reasons of the parents consenting to MGA can be influenced by social customs that I have mentioned earlier (Guyon, 2021).
III- A potential legal public health policy
As I have demonstrated it in my previous development, Western legislation about genital alterations isn’t based on a universally valid distinction but is extremely influenced by certain social and political considerations in terms of race and gender (Shavisi, 2019). I personally consider that Western legislation should engage with a gender-inclusive approach based on adult individual’s own capacity to provide consent to genital alteration procedures. Identical judging standards for medically unnecessary genital alterations, whether they concern FGA, MGA, IGA and FGCS done in the global North or South, could neutralize the cultural Western imperialism I have depicted (Earp, 2017). I also think it is essential that such procedures are delayed until persons have reached the age of majority, allowing them to freely, or at least in the most freely attainable conditions possible, choose to undertake genital alteration procedures. In the specific case of religious persons, whether they are Jewish or Muslim, it would allow them, and not their parents, to consent to an act they consider themselves as necessary to the fulfillment of their own faith or involvement in their communities. Nevertheless, the religious aspect of genital alterations obviously raises complex issues that can hardly be resolved only with law. Finally, it seems also important that genital alterations procedures take place in sanitized medical conditions, and that patients are fully aware of possible complications and follow-up care (Shavisi, 2019).
My latest concern is related to the total criminalization of all types of genital alterations before an age of consent defined by the majority. I assume it is heavily required that Western legislations harmonize the legal frameworks of FGA, MGA, IGA and FGCS. I plead for such criminalization in the name of several rights, defined internationally. Of course, the variability of the accountability of such norms must be taken into account, as the international treaties or covenant must be ratified to be legally-binding towards States, and even in that case, they still have the possibility of a “cold reservation” concerning any article that doesn’t suit their point of view. Therefore, the best solution to ensure the legal effects of such criminalization would be to implant the following rights and their applications on genital alterations in national constitutions. First, there is obviously the right to health, very broadly defined in the International Covenant of Economic, Social and Civil Rights (ICESCR) as the “right to the highest attainable standard of physical and mental health” and mentioned in more than 115 constitutions. Applied to genital alterations, it implies that States must adopt appropriate administrative and judicial measures to ensure that male, female and intersex children’s right to health is not threatened. Second, the right to be free from torture and ill-treatment is relevant in terms of genital alterations, since they can be practiced in unhygienic conditions and can all be truly harmful procedures with a lack of pain control and leading to long-term painful effect. Third, the right to equality and non-discrimination, defined in the 12th article of the ICESCR, applies in genital alterations legal treatment, as it is sexist and discriminatory to legally distinguish FGA, MGA and IGA on the basis of the gender of the child genitally altered. Fourth, I would raise the right to “bodily respect and bodily inviolability”, as it is defined in the French Civil code. Not only do genital alterations disrespect bodies integrity of children, as they aim to transform the genitalia appearances, but they also consist of surgical acts of physical violability to which children cannot oppose as they are often too young at the time of the operation. Finally, in the name of the “best interest of the child”, defined in the 3rd article of the CRC, it is crucial that children’s genital alterations are criminalized as they are rarely, if not never, done in the best interest of the child.
To conclude, this article aimed at showing that “cutting children’s genitals is morally wrong if not medically necessary” (Earp, 2019). The Western legal framework that criminalizes FGA but ignores MGA, IGA and FGCS must therefore be rethought in order to provide a more inclusive and complete legal pattern. Limits can obviously be highlighted, especially with regards to the extent of the legislation dealing with genital alterations. Concretely, I acknowledge that different national legislations exist and that all cannot be summed up with only two legal texts, no matter how representative of Western culture they can be. As I have mentioned in the first part, some Western countries, such as Malta, have taken steps forward to criminalizing all kinds of genital alterations. Moreover, I have already underlined the issue of non-legally binding international legislation when they are not ratified, which enlighten the necessity of national laws to tackle fundamental societal issues.
Eventually, further research work could zoom in on the non-Western legislations relating to genital alterations and their impact from a social and cultural point of view, extending the movement of the Third world approaches to international law. Another supplementary research work could focus on the economical dimension of genital alterations, especially FGA and FGCS, since it is evoked in the STOP FGM Act of 2020 that FGA consist of a large interstate market which must be regulated.
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