Why was the U.S. ban on female genital mutilation
ruled unconstitutional, and what does this have to
do with male circumcision?
Brian D Earp
There are now legally prohibited forms of medically unnecessary female genital cutting—
including the so-called ritual nick—that are less severe than permitted forms of medically
unnecessary male and intersex genital cutting. Attempts to discursively quarantine the male
and female forms of cutting (MGC, FGC) from one another based on appeals to health
outcomes, symbolic meanings, and religious versus cultural status have been undermined by
a large body of recent scholarship. Recognizing that a zero-tolerance policy toward ritual
FGC may lead to restrictions on ritual MGC, prominent defenders of the latter practice have
begun to argue that what they regard as “minor” forms of ritual FGC should in fact be seen as
morally permissible—even when non-consensual—and should be legally allowed in Western
societies. In a striking development in late 2018, a federal judge ruled that the longstanding
U.S. law prohibiting “female genital mutilation” (FGM) was unconstitutional on federalist
grounds, while separately acknowledging the logical relevance of arguments concerning non-
discrimination on the basis of sex or gender. In light of such developments, feminist scholars
and advocates of children’s rights now increasingly argue that efforts to protect girls from
non-consensual FGC must be rooted in a sex and gender-neutral (that is, human) right to
bodily integrity, if these efforts are to be successful in the long-run.
Key words: female genital mutilation, male circumcision, intersex genital cutting, medically
unnecessary, United States
This is the author’s copy of published manuscript. It may be cited as follows:
Earp, B. D. (2020). Why was the U.S. ban on female genital mutilation ruled unconstitutional, and
what does this have to do with male circumcision? Ethics, Medicine & Public Health, 15(100533),
Why was the U.S. ban on female genital mutilation
ruled unconstitutional, and what does this have to
do with male circumcision?
In November of 2018, a U.S. federal judge ruled that the 1996 U.S. law prohibiting “female
genital mutilation” (FGM) was unconstitutional, prompting expressions of disbelief and
outrage across the political spectrum (3–5). How could it be unconstitutional for Congress to
protect little girls from an act that is widely considered to be an especially grievous form of
gender-based violence? Even more shocking to some, the federal government subsequently
declined to defend its own anti-FGM law, requesting instead that the matter be dismissed (6).
On September 13, 2019, this request was granted by a U.S. Court of Appeals (7). There is
currently no national-level ban on FGM in the United States.
In contrast to many observers, I was not surprised by the federal ruling. Only a few
weeks earlier I had delivered a lecture to the U.K. National Secular Society explaining why
the U.S. anti-FGM law might have to be struck down—and why other Western countries
could soon follow suit (8). Indeed, legal theorists have argued for decades that a collision
course with the U.S. Constitution was set in 1996, the moment the law was passed (9–12). In
this essay, I will lay out some of the main reasons for this view, taking into consideration
more recent events and scholarship. I will then briefly highlight a new proposal for how non-
consenting persons might better be protected from medically unnecessary genital cutting
practices going forward.
This paper is expanded from an informal piece published initially at The Conversation website (1). Some
sentences, primarily in the summary, have been adapted from a previously published lecture abstract (2).
According to a recent international consensus statement, “an intervention to alter a bodily state is medically
necessary when (a) the bodily state poses a serious, time-sensitive threat to the person’s well-being, typically
due to a functional impairment in an associated somatic process, and (b) the intervention, as performed without
delay, is the least harmful feasible means of changing the bodily state to one that alleviates the threat” (13) (p.
18). Definition based on (14).
Background on the U.S. statute
Let us first consider the wording of the crime. According to the 1996 statute, 18 U.S. Code
§ 116, Female Genital Mutilation, “Whoever knowingly circumcises, excises, or infibulates
the whole or any part of the labia majora or labia minora or clitoris of another person who has
not attained the age of 18 years” shall be fined or imprisoned or both (15). The word
“circumcises” in this context is confusing for two reasons. First, among most English
speakers, the word is much more strongly associated with cutting of the penis—i.e., male
circumcision—than with cutting of the vulva. And second, insofar as “female circumcision”
is a recognized term, there is no stable or widely shared agreement about what it means (16–
18). The Latin basis for “circumcision” is circum (around) + caedere (to cut), meaning to cut
around. Applied to the penis, this is generally understood to refer to cutting around the penile
shaft – proximal to the glans – as a way of partially or totally removing the penile
prepuce/foreskin (Box 1) (19). Applied to the vulva, it might be taken to mean cutting around
the external part of the clitoris as a way of partially or totally removing the clitoral prepuce
(or “hood”), but that is not the only way the term is used.
Instead, in practice, “female circumcision” may refer to anything from scraping,
pricking, or nicking the clitoral prepuce (Box 1) without removal of any genital tissue (an
instance of FGM Type IV on the World Health Organization [WHO] typology) to removing
some portion of the clitoral hood without cutting the (rest of the) clitoris (FGM WHO Type
Ia) to removing the clitoral hood along with at least some part of the external clitoris (FGM
WHO Type Ib) to forms of cutting that (also) affect the labia (FGM WHO Type II) (20).
“Excises” is also undefined in the statute, although in common usage it typically denotes
removal of tissue. And “infibulates” is arguably misused: among specialists, the term
distinctly refers to narrowing (often severely) the vaginal opening by cutting and
repositioning the labia to form a covering seal, with or without modification of the external
clitoris or clitoral hood (21). In other words, “infibulates the labia” or “infibulates the
clitoris”—phrases implied by the definition of FGM in the statute—verge on the nonsensical.
Box 1. A brief overview of the human prepuce. Adapted from (22). Quotes from (23).
The prepuce is a “common anatomical structure of the male and female external
genitalia of all human and non-human primates.” In humans, the penile and clitoral
prepuces are identical in early fetal development and remain indistinguishable in some
intersex individuals. The prepuce is an “integral, normal part of the external genitalia
that forms the anatomical covering of the glans penis and clitoris,” thereby internalizing
each and “decreasing external irritation and contamination.” In the case of the penile
prepuce, an additional function is to protect the urinary opening from abrasion, as this
runs through the penile, but not the clitoral glans. In both cases, the prepuce is “a
specialized, junctional mucocutaneous tissue which marks the boundary between
mucosa and skin … similar to the eyelids, labia minora, anus and lips.” The “unique
innervation of the prepuce establishes its function as an erogenous tissue.”
Nevertheless, the statute is more notable for what it does not say. It does not say that an
exception to fining or imprisonment shall be made for cutting of the vulva that is done to
fulfill a perceived religious obligation. Nor does it say that an exception shall be made for
“minor” cutting (cutting that does not affect the clitoris, say, or which does not remove any
tissue or leave a visible mark). It does not say an exception shall be made for cutting
performed under clinical conditions with sterile instruments by a skilled operator. Nor is
there an exception for wounds that heal completely and do not frustrate any bodily functions.
Rather, any cutting, no matter how slight, of any part of the vulva, for any reason, is
forbidden before age 18.
The sole exception is for medical necessity (see footnote 2). This is to allow, for
example, certain obstetric procedures during childbirth, which must be “performed by a
Strictly, this depends on how the word “circumcises” is glossed. If it includes forms of cutting that do not
remove tissue, consistent with common usages of the term “female circumcision”—or its translated
equivalent—in many Muslim communities (24), then “any cutting” is a reasonable interpretation. If it only
refers to forms of cutting that remove tissue, then it plausibly becomes redundant with “excises,” which counts
against this more restricted interpretation. Also counting against the restricted interpretation is a recent ruling
from Australia’s highest court, which held that, for legal purposes, (a) the clitoral prepuce is part of the clitoris,
and (b) any cutting of this tissue that is not medically necessary constitutes illegal mutilation, no matter how
slight and irrespective of whether there is any lasting functional impairment or damage of any kind (22,25).
person licensed in the place of its performance as a medical practitioner.” Absolutely no
accommodation is made for a person’s sincere religious beliefs or deep-rooted
commitment to a longstanding cultural practice, no matter how venerable (to them) or ancient
in origin. In fact, such accommodation is explicitly ruled out: “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”
This creates a legal problem. The problem is not, as I will argue, that the law should
make an exception for custom, culture, religion, or ritual. Presumptively, girls have both a
moral and, in many societies, a legal right to bodily integrity, including with respect to their
genitals, whatever the culture or religion of their parents. Especially when it comes to their
most intimate sexual anatomy (their so-called “private parts”), it is almost universally
understood—at least within a Western ethicolegal context—that any cutting that is not
strictly medically necessary, no matter how minimal, should be their own choice to make
when they are old enough to understand what is at stake (13).
The problem, rather, is that the law already makes an exception for custom, culture,
religion, or ritual when it comes to medically unnecessary genital cutting of other children,
just so long as they do not have a vulva. On the surface, at least, this looks like
an unconstitutional form of sex-based discrimination, an interpretation to which I will return
There is more than one way not to have a vulva. This includes being born with a difference of
sex development that leads to sexually ambiguous genitalia, neither fully masculinized nor
feminized; or being born with male-typical genitalia (26–28). Some individuals with
ambiguous genitalia are subjected to highly invasive, yet medically unnecessary
surgeries before they can give their own informed consent (29–34). Typically, the goal is to
shape their genitals into something that more closely conforms to a stereotypically masculine
or feminine appearance. These surgeries, which include “cosmetic” reductions of the
cliteropenile organ (Figure 1), risk permanent nerve damage and loss of sexual sensation.
They can also have detrimental consequences for an individual’s body image and self-esteem
(35). The implicit message heard by many people subjected to such surgeries, some of whom
later identify as intersex, is that they had to be “fixed” before they could be fully loved and
Figure 1. Differences of sex development resulting from androgen insensitivity, ranging from
characteristically male genitalia (left) to characteristically female genitalia (right) (40). Some
children are born with a clitoropenile organ that is neither determinately male (a penis) nor
female (a clitoris). At what degree of feminization or masculinization of this organ should it
be considered morally or legally permissible to cut a child’s genitals when it is not medically
necessary to do so (2)? This figure description is adapted from (41).
Likewise, individuals born with more stereotypically male genitalia (both boys/men
and transgender women)
also face routine surgery on their healthy sexual anatomy before
they can give their own informed consent. At least, they do in the United States, where ritual
penile circumcision was “medicalized” in the late 1800s—partly in an effort to combat
There is now growing recognition that some people born with penises may not identify as boys/men, such as
transgender women and some genderqueer individuals (42–45) At the same time, “the potential harms of
neonatal or early-childhood [penile] circumcision for trans women who elect a penile inversion surgery—as a
part of gender-affirming care, for example—has yet to receive much attention … the preemptive removal of a
large proportion of sensitive, elastic genital tissue from the penis that could otherwise have been used in the
construction of a neovagina—i.e., the penile foreskin—is undoubtedly of relevance to the welfare interests of
such women” (22). Please note that this footnote has been adapted from (41).
masturbation, among other dubious causes (46–48)—and where a majority of male-
categorized persons continue to be circumcised at birth for non-religious reasons (this is a
unique phenomenon among Western, developed nations) (49–51). In a typical male
circumcision, a third or more of the penile skin system is removed (19), including the parts of
the penis most sensitive to light touch (52–55). As such, a protective, erogenous sleeve of
elastic tissue—the foreskin—is excised, often leaving a permanent scar (56).
In a small minority of cases, such circumcision is done for explicitly religious
reasons, as in Orthodox Judaism (57). In the vast majority of cases, it is done for “merely
cultural” reasons, sometimes bolstered by vague appeals to health or hygiene. In the last
decade, task forces at the American Academy of Pediatrics (AAP) and the U.S. Centers for
Disease Control (CDC) have lent their support to such appeals, by emphasizing
potential health benefits associated with penile foreskin removal (58–63). But the main data
on which they relied for this support concerned adult, voluntary circumcision and
heterosexual HIV transmission in sub-Saharan Africa (64–71). These data cannot be
straightforwardly applied to circumcision of babies in Western countries, where HIV
infection is much rarer and where, moreover, it is not primarily transmitted among
heterosexuals but among injecting drug users and men who have sex with men (72–74).
Accordingly, the relatively favorable stance toward penile circumcision taken by U.S.
organizations in recent years has been effectively rejected by every comparable medical
organization abroad, from the Canadian Paediatric Society (75) to the Royal Australasian
College of Physicians (76) (see Box 2).
I am reminded of something a Dutch colleague once said to me: “We in Europe keep
surgery as a last resort for dealing with disease, especially when the same health benefits are
possible without surgery, and even more so when the patient cannot consent. But in the U.S.,
your doctors start with a surgery on healthy boys, and say, given this surgery, what treatable
infections that he could have avoided anyway will he have slightly less risk of getting?”
Box 2. International medical society statements on nonvoluntary neonatal male
circumcision (NNMC). Adapted from (22); internal references omitted.
In 2015, the Canadian Paediatric Society concluded that the medical benefits and risks
of NNMC were “closely balanced,” while the Royal Dutch Medical Association
maintained that there “is no convincing evidence that [NNMC] is useful or necessary in
terms of prevention or hygiene.” Meanwhile, the Royal Australasian College of
Physicians, upon revisiting its 2010 policy in light of the AAP statement, affirmed that
“the frequency of diseases modifiable by circumcision, the level of protection offered by
circumcision and the complication rates of circumcision do not warrant routine infant
circumcision in Australia and New Zealand.” Finally, the Danish Medical Association
declared in 2016 that NNMC is “ethically unacceptable” on account of the known
surgical risks, the lack of sufficient evidence of a “clear health benefit,” and the
permanency of the anatomical change. What these various positions suggest is that,
insofar as NNMC does confer some kind or degree of health-related benefit, it is far from
clear that this benefit offsets even the strictly health-related risks, let alone in a decisive
manner. Thus, even the AAP, whose policy among comparable organizations is the most
favorable toward circumcision, does not actually recommend NNMC on grounds of
As it happens, international criticism of the (now expired) American policy from 2012
was sufficiently censorious that it evoked three separate responses from the AAP task force
(77–79), including one solo-authored by task force member Dr. Andrew Freedman. In his
response, Freedman conceded various “difficulties” with the approach taken by the task
force, including their failure to use any recognized method of accurately measuring,
weighting, or balancing benefits or risks in their analysis (77).
Even more striking, however, Freedman frankly acknowledged the religio-cultural
elephant in the room (80). “Most circumcisions,” he wrote, “are done due to religious and
cultural tradition.” In the West, “although parents may use the conflicting medical literature
to buttress their own beliefs and desires, for the most part parents choose what they want for
a wide variety of nonmedical reasons” (77) (p. 1). He went on to say: “There can be no doubt
that religion, culture, aesthetic preference, familial identity, and personal experience all factor
into their decision. Few parents when really questioned are doing it solely to lower the risk of
urinary tract infections or ulcerative sexually transmitted infections” (77).
Indeed, as Freedman stated in a separate interview: “I circumcised [my son] myself
on my parents’ kitchen table on the eighth day of his life. But I did it for religious, not
medical reasons. I did it because I had 3,000 years of ancestors looking over my shoulder”
Untenable legal distinctions
Both kinds of surgeries on children with genitals-that-are-not-clearly-vulvas pose a problem
for anti-FGM laws. In some children with ambiguous genitalia, for instance, there is virtually
no difference between a small penis (which is currently regarded as legal to cut) and a large
clitoris (which is currently regarded as illegal to cut) (82). That is an untenable legal
distinction. It is increasingly recognized that sex—let alone gender—is not a simple binary,
and that female-typical or male-typical genitalia do not categorically map on to XX or XY
chromosomes (see Figure 1) (83–85). These facts should put pressure on any law that, like
the 1996 U.S. statute, defines a crime in terms of presumably binary, sex-specific body parts
But one needn’t appeal to intersex cases to see why sex-specific genital cutting laws
cannot stand. Based on the reasoning of the federal judge who recently struck down the U.S.
anti-FGM law, even routine, medically unnecessary penile circumcision—if it continues to be
tolerated when non-consensual—may ultimately vitiate the constitutional basis for such laws.
According to the judge, Bernard Friedman, the anti-FGM law concerned activity that
was already illegal at the state level. “As despicable as this practice may be,” he wrote, “it is
essentially a criminal assault” (5). Because Congress isn’t allowed to regulate “local criminal
activity” under the Constitution unless it substantially affects interstate commerce, in passing
the 1996 law, it overstepped its bounds: “FGM is not part of a larger market and it has no
demonstrated effect on interstate commerce. The commerce clause does not permit Congress
to regulate a crime of this nature” (5).
In one sense, this is a reassuring verdict for those who wish to protect girls from this
particular form of violence: just because the federal law was struck down, it did not thereby
become legally permissible to cut little girls’ genitals for religious or cultural reasons.
According to the judge, such cutting was already a crime, as it always had been. Simply put,
cutting someone’s genitals without (valid) consent is by definition an assault and battery—
and if done to a minor, also child abuse—unless it is medically required surgery that cannot
ethically be delayed until the person’s own consent can be obtained (87–91).
Such assault is
already illegal in all 50 states.
In other words, there is no need for special anti-FGM laws to prosecute those who
perform medically unnecessary female genital cutting, or their accomplices, though at least
35 states do have such laws (96). Not only are such special laws unnecessary, however – and
here is the rub – they may also be unconstitutional. As my colleague Sarah Johnsdotter and I
argued in a recent publication:
Virtually all Western constitutions hold that males and females, members of different
racial or ethnic groups, and adherents to different religions, must be treated equally
before the law. Under current zero-tolerance laws, female ritual nicking, which does
not remove tissue and—contrary to common misconceptions—is practiced for
explicitly religious reasons within some sects of Islam, is regarded as a criminal act
even if done with pain control and sterile equipment by a medically trained provider.
At the same time, non-consensual male circumcision, which removes roughly 1/3 to
1/2 of the motile skin system of the penis, [is treated as legal] whether or not it is
practiced for explicitly religious reasons, and even if done without pain control in an
unhygienic manner by a medically untrained provider [for example, among some
Hasidic Jews]. Thus males and females, as well as Muslims and Jews … are not
currently being treated equally before the law. (41)
Officially, Friedman stayed silent on this issue. But his ruling includes language which
suggests he was aware of the general problem. Referring to an international treaty ratified by
For arguments that so-called parental “proxy” consent (that is, permission) for medically unnecessary genital
surgeries are not morally or legally valid, regardless of the child’s sex or gender, see, e.g., these references: (92–
95) Needless to say, a parent cannot “consent” to the assault and battery of their child.
the U.S. Senate in 1992, which states that every child has certain rights without
discrimination as to race, sex, or religion, among other protected characteristics, Friedman
wrote: “As laudable as the prohibition of a particular type of abuse of girls may be, it does
not logically further the goal of protecting children on a nondiscriminatory basis” (5).
The same reasoning applies to the states. More than twenty years ago, Shea Lita
Bond—later a General Attorney for the Social Security Administration—published an article
in the John Marshall Law Review entitled, “State Laws Criminalizing Female Circumcision:
a Violation of the Equal Protection Clause of the Fourteenth Amendment” (9). Highlighting
potential double standards based on both sex and religion, Bond reasoned that courts would
ultimately have to “strike down FGM statutes as unconstitutional,” and proposed that “state
legislatures enact gender neutral, generally applicable circumcision laws which protect all
children from unnecessary modification of their genitalia” (9) (p. 355).
To simplify somewhat: criminal assault is criminal assault. There can be no “female
assault” or “male assault” under Western constitutional regimes (90). So, if medically
unnecessary, non-consensual female genital cutting—specifically of the kind at issue in the
federal case, to be discussed below—is criminal assault, then so must be male genital cutting
Against this view, it might argued that “FGM” is not a religious practice, and is also
much more harmful than male circumcision, so perhaps a sex-specific law could be justified
on those grounds. But such an argument cannot succeed (97–99). As indicated earlier, the
WHO typology for FGM includes multiple different practices carried out by different groups
for different reasons. Some of these practices are explicitly religious in nature while being
markedly less severe than male circumcision (100–102).
A case in point
Consider the case that prompted the federal ruling. It concerned a small Muslim sect called
the Dawoodi Bohra. The Bohras practice what they call “khatna” – an Arabic word for
circumcision – on both girls and boys within their community (103).
Both forms of
“circumcision” are justified by the Bohras on the basis of a religious text they follow called
the da'a'im al-Islam (107). Both forms have been medicalized (that is, performed by a doctor
with sterile equipment). And the form of cutting the Bohras do to their daughters is typically
more superficial than what is done to their sons (96).
In the female case, “a pinch of skin” is typically cut or removed from the clitoral
hood, often leaving no visible sign of alteration (107). In the male case, the entire penile
foreskin is removed, leaving an unmistakably altered sexual organ. According to the ruling
by Friedman discussed in the previous section, the less severe female procedure is already
illegal in all 50 states—as a criminal assault. It might seem, then, that the more severe male
procedure must also be a criminal assault. In fact, that has been a dominant view among legal
scholars who have addressed the issue since 1984 (11,12,88,90,91,93–95,108). However, the
male procedure continues to be treated as legal regardless of jurisdiction, including in its
more dangerous forms.
What sort of forms do I mean? In New York City alone, according to city health
officials, more than 3,000 babies per year are subjected to something called “metzizah b'peh”
(109). This is an ancient, unhygienic form of male circumcision still practiced among some
ultra-Orthodox Jews. In this form, the “mohel” (traditional circumciser) tears the immature
This is a general pattern. Virtually every group that practices female genital cutting also practices male genital
cutting (but not vice versa), often in parallel ceremonies serving similar social purposes. Thus, there are almost
no societies that “single out” girls for cutting. By contrast, there are numerous societies that cut the genitals only
of boys (104–106).
foreskin from the penile glans, typically without pain control, and then takes the baby’s penis
into his mouth to staunch the blood and supposedly “cleanse” the wound.
This can transmit the oral herpes virus. At least 11 baby boys have contracted the
virus this way in recent years, leading to two known deaths and two cases of serious brain
damage (110). Not only is this practice not treated as illegal—it isn’t even regulated. Even an
informal plan to require that a consent form be signed by parents was ultimately dropped by
city officials (111). Instead, the NYC Health website currently recommends that parents
“Talk to the mohel to make sure he rinses his mouth with mouthwash (Listerine™ Original
Gold) for at least 30 seconds” before putting their newborn son’s penis in his mouth (112).
By contrast, the NYC Health website for female circumcision (FC) states: “While it may be a
deeply rooted practice, it is not performed for medical reasons. It is done for religious, social,
or cultural reasons [and puts] thousands of girls and young women [at] great risk for lifelong
physical and psychological damage.” It is also “illegal to perform FC in New York State.”
There is at least one remaining point of contrast between male and female “circumcision”
that might be used to justify a categorical difference in how the two procedures are treated in
law. Even though neither procedure is (almost ever) medically necessary, only one of them
has been statistically associated with certain health-related benefits—namely male
circumcision, as noted earlier—and perhaps that is enough to ground their different legal
Let us see where such an argument would lead. First, if it were widely accepted, it
would create a strong incentive for medically qualified supporters of female “circumcision”
to conduct studies into, and generate evidence for, some statistical health benefit or another
(just as has happened with supporters of male circumcision) (46). As I will suggest in a
moment, it is possible they would succeed. In fact, already today, in societies where female
“circumcision” is common, alleged health benefits are regularly raised (114–122). According
to the vice president of the Centre for Islamic Studies in Sri Lanka, for instance, “our religion
requires [female circumcision] and it actually helps to keep the area clean and hygienic and
prevents infections” (123). Or consider a common attitude among the women of Sierra
Leone: “Why [would] any reasonable mother want to burden her daughter with excess
clitoral and labial tissue that is unhygienic, unsightly, and interferes with sexual penetration
... especially if the same mother would choose circumcision to ensure healthy and
aesthetically appealing genitalia for her son?” (124) (p. 17). If researchers from such societies
had as much influence on the scientific literature (and on health global policy) as do
circumcised males in the United States, perhaps there would be a comparable number of
well-funded studies looking into health benefits for FGC. However, as medical historian
Robert Darby notes:
Official bodies working against FGC [such as the WHO] have condemned
medicalization of the procedure and funded massive research programs into the harm
of the surgery. The irony [is] that WHO also frames male circumcision as a public
health issue—but from the opposite starting point. Instead of a research program to
study the possible harms of circumcision, it funds research into the benefits and
advantages of the operation. In neither case, however, is the research open-ended: in
relation to women the search is for damage, in relation to men it is for benefit; and
since the initial assumptions influence the outcomes, these results are duly found.
(125) (p. 157).
Nevertheless, let us simply imagine that some form of FGC became reliably associated with
statistical health benefits along the lines of what has been touted for MGC. We can take the
example of medically unnecessary labiaplasty (FGM WHO Type IIa), which, when
performed on adult women, is considered a cosmetic practice in Western countries. As Alex
Myers and I have noted elsewhere:
Labiaplasty is similar to circumcision in that it removes genital tissue that is not
necessary for sexual enjoyment but which nevertheless has certain [sensory and other]
properties [that] many people value positively. It is also similar to circumcision in that
the genital tissue it removes is often warm and moist and may trap bacteria, can
become infected or even cancerous, may be injured or torn during sexual activity, and
requires regular washing to maintain good hygiene. Removing the labia, therefore,
likely does confer at least some statistical health benefits in that it reduces the surface
area of genital tissue that is not essential for sexual function (in some narrow sense)
but which may on occasion pose a problem of one kind or another for its owner. (22)
Of course, medically unnecessary labiaplasty is typically performed only with the informed
consent of the affected individual (126). Suppose, however, that performing labiaplasty in
infancy turned out to be “technically simpler, safer, and more cost effective—with a shorter
healing time, and so on—than labiaplasty performed on a consenting adult” (22), similar to the
claims that are often raised for male circumcision (127). Would these considerations be enough
for non-consensual, neonatal labiaplasty to be treated as morally or legally permissible (128)?
Or to put it a different way, would opponents of FGC make an exception for such a procedure?
Presumably, they would not:
First, they would argue that healthy tissue is valuable in-and-of-itself, so should be
counted in the “harm” column simply by virtue of being damaged or removed. Second,
they would point to non-surgical means of preventing or treating infections, and suggest
that these should be favored over more invasive methods. And third, they would bring
up the language of rights: a girl has a right to grow up with her genitals intact, they
would say, and decide for herself at an age of understanding whether she would like to
have parts of them cut into or cut off. (114)
It is difficult to see why the same arguments should not apply to MGC. As such, it seems that
the “health benefits” strategy is not sufficient to justify the current asymmetries between FGC
and MGC in terms of how they are treated in Western law and policy.
Given such asymmetries, and the need for greater ethical and legal consistency, there are two
main ways this situation can play out. Either “minor” forms of medically unnecessary, non-
consensual FGC will have to be legally tolerated in the U.S., especially when performed for
religious reasons (as in the case of the Dawoodi Bohra), or medically unnecessary, non-
consensual male and intersex genital cutting will have to be restricted in some way. Such a
restriction might include, for example, the introduction of a sex-neutral age of consent, as has
been proposed by several authors (129–131).
Prominent supporters of ritual male circumcision are well aware of this dilemma.
Rather than accepting an age limit, however, or indeed almost any restriction, on medically
unnecessary MGC, they have made moves in the opposite direction. That is, they have begun
to argue that (what they regard as) “minor” FGC—including not only ritual nicking as
described above, but also, in the case of at least two such supporters, forcible retraction,
cutting, or partial removal of the clitoral prepuce (see Box 1), and even total excision of the
labia minora—should be considered morally and legally acceptable irrespective of medical
necessity, with or without the consent of the affected person. Writing in the Journal of
Medical Ethics, Kavita Shah Arora and Allan J. Jacobs state explicitly:
[We] have argued elsewhere that [non-consensual, medically unnecessary] male
circumcision does not constitute a human rights violation. [We] will assume the
validity of this position [and] argue that a liberal society that tolerates expression of
culture and/or religion in the manner of male circumcision should also permit certain
de minimis [FGC] procedures. We believe this is an appropriate assumption because
all Western nations in fact permit ritual circumcision of [male minors]. (132) (p. 149)
Similarly, in the federal court case we have been discussing, Harvard lawyer and
vocal defender of ritual male circumcision, Alan Dershowitz (133), weighed in on the side of
the defendants, that is, the members of the Dawoodi Bohra community alleged to have
authorized or performed FGC on several young girls. In a news article entitled, “Alan
Dershowitz explains why he is assisting a group accused of promoting female genital
mutilation,” the author states that in addition to consulting on crucial matters of legal
strategy, Dershowitz advised the group to adopt a version of the Jewish (male) circumcision
ritual known as hatafat dam brit (134). This involves piercing the genitals with a sharp
instrument in order to draw blood, which, if applied to the vulva, would qualify as FGM Type
IV on the WHO typology (20). In short, as the anthropologist Richard Shweder has argued:
“what’s good for the goose is good for the gander” (135).
Various scholars including myself have argued against such moves in recent
publications, attempting to cast the modus ponens of Arora, Jacobs, Dershowitz, Shweder,
and others as a modus tollens (or a reductio ad absurdum) (13,136–144). Nevertheless,
following the publication of the article by Arora and Jacobs, the recommendation to permit
medically unnecessary, non-consensual FGC was widely discussed in the media, and was
ultimately endorsed by some mainstream commentators, including the editors of The
Economist (145). Emboldened by these developments, defenders of what they call “female
circumcision” have increasingly spoken out against the status quo, which they rightly suggest
reflects Western cultural bias, moral hypocrisy, and sexist and religious double standards.
Some groups, for example, have established professional websites to promote “minor” FGC
(146–148), in some cases quoting verbatim from the 2012 policy of the AAP on newborn
male circumcision to explain why their own practice should also be allowed.
Their quotations are not unjustified. According to the AAP task force members,
including Dr. Freedman as mentioned earlier, reasonable people may disagree about what is
in the overall best interest of an individual child, including with respect to the weight that
should be assigned to potential health outcomes of circumcision compared to other factors.
As the AAP task force states: “there are social, cultural, religious, and familial benefits and
harms to be considered as well.” And in their view, it is “reasonable to take these nonmedical
benefits and harms for an individual into consideration when making a decision about [male]
circumcision” (58) (p. e759). But if that is correct, then why is it not equally reasonable to
take such nonmedical benefits and harms into account for female “circumcision”—and to
likewise defer to the judgment of parents about the child’s overall best interest—especially
when considering those forms of FGC (such as ritual nicking) that are comparatively less
severe than male circumcision?
Indeed, that was exactly the argument of the AAP in an earlier statement from 2010
on FGC (149). In its report, “Ritual genital cutting of female minors,” the organization stated,
“Some forms of FGC are less extensive than the newborn male circumcision commonly
performed in the West” (150) (p. 1089). Moreover, in its then-current policy on such
circumcision, the AAP “expresses respect for parental decision-making and acknowledges
the legitimacy of including cultural, religious, and ethnic traditions when making the choice
of whether to surgically alter a male infant’s genitals.” Putting two and two together: since
nicking the vulva with a sharp object “is much less extensive than routine newborn male
genital cutting [it] might be more effective if federal and state laws enabled pediatricians to
reach out to families by offering a ritual nick as a possible compromise to avoid greater
harm” (150) (p. 1092).
This suggestion was met with considerable resistance from anti-FGM advocates,
feminists, and children’s rights scholars, among many other stakeholders, and the policy was
retracted just one month later (151). Accordingly, the AAP, like the U.S. legal system, the
WHO, and the Western discourse more generally, currently maintains two contradictory
positions on medically unnecessary genital cutting: (a) it should never be performed for any
reason on females under the age of 18, and (b) it should not be restricted, regardless of the
reason, for males under the age of 18—quite apart from any details about the actual harms or
motivations associated with one type of cutting versus the other. Again: this is not a
In previous work, I have argued that doctors are not ethically, and should not be
professionally, permitted to take a sharp object to any child’s genitals unless there is a
relevant medical emergency (152–158). I will not rehearse all those arguments here. Briefly,
however, even if the cutting is “just a little nick,” it still carries risk, and it is reasonable to
prefer that no such risk be concentrated on this particular part of one’s body unless it is
necessary to save one’s life or health (and therefore preserve one’s future bodily autonomy).
It can also cause psychological harm to be held down and cut in such a personal way,
especially as an infant or young child. And as an adult, it can it be (re)traumatising to learn
about, and reflect on, what happened to one’s genitals when one was too little to understand
The appropriate role of criminal law in discouraging genital cutting is a complex and
contentious matter and I will not wade into that issue here (159–165). However, suppose that
both FGC and MGC are—in line with the logic of the recent federal ruling—ultimately
understood to constitute criminal assault. One recent suggestion is that “a legal ground for a
personal exemption from punishment by exculpation might be considered” to avoid
stigmatizing well-meaning parents as criminals (91) (p. 447). According to the authors of this
suggestion, legal scholars Reinhard Merkel and Holm Putzke: ‘to abstain from raising
criminal charges would not, however, alter the fact that the [cutting] remains unlawful [as it]
is definitionally a type of battery.” Even so, “in certain cases, the legislature may grant
exceptional excuses under criminal law for certain widespread practices that are regularly
performed without consciousness of their being unlawful [or] even under the dictate of a
belief in a respective divine command” (91) (p. 447)
On this view, although explicitly religious genital cutting would be exempt from
criminal punishment (while remaining illegal), non-religious genital cutting would indeed be
subject to criminal prosecution “as soon as the grounds for a personal exemption from
punishment were removed (that is, when the unlawful status of the cutting became
sufficiently well known)” (41). In particular, physicians might face a special liability for
knowingly performing medically unnecessary surgical procedures on persons who are within
their care and not capable of giving consent (87). In a healthcare context, it is normally
uncontroversial that any genital contact—including touching or fondling—that is not strictly
required for diagnosis or treatment is at minimum a serious breach of the doctor’s fiduciary
duties (166–168). Going forward, it will be important to ensure that all non-consenting
persons are protected from such medically unnecessary interference with their genitals,
regardless of race, ethnicity, sex, gender, gender identity, or parental religion.
In other words, instead of saying “what’s good for the goose is what’s good for the
gander,” perhaps we should be saying, “what’s good for the gander is what’s good for the
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