Against Legalizing Female 'Circumcision' of Minors

Abstract

Defenders of male circumcision increasingly argue that female ‘circumcision’ (cutting of the clitoral hood or labia) should be legally allowed in Western liberal democracies even when non-consensual. In his target article, Richard Shweder (2022) gives perhaps the most persuasive articulation of this argument to have so far appeared in the literature. In my own work, I argue that no person should be subjected to medically unnecessary genital cutting of any kind without their own informed consent, regardless of the sex characteristics with which they were born or the religious or cultural background of their parents. Professor Shweder and I agree that Western law and policy on child genital cutting is currently beset with cultural, religious and sex-based double standards. We disagree about what should be done about this. In this commentary, I argue that ‘legalising’ childhood FGC so as to bring it into line with current treatment of childhood MGC is not an acceptable solution to these problems. Instead, all medically unnecessary genital cutting of non-consenting persons should be opposed on moral and legal grounds and discouraged by all appropriate means.

Full text

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Forthcoming, Global Discourse (2022).
Against legalizing female ‘circumcision’ of minors
Brian D. Earp
University of Oxford
Abstract
Defenders of male circumcision increasingly argue that female ‘circumcision’
(ritual cutting of the clitoral hood or labia) should be legally allowed in
Western liberal democracies even when non-consensual. In his target article,
Richard Shweder (2021) gives perhaps the most persuasive articulation of this
argument to have so far appeared in the literature. In my own work, I argue
that no person should be subjected to medically unnecessary genital cutting
of any kind without their own informed consent, regardless of the sex
characteristics with which they were born or the religious or cultural
background of their parents. Professor Shweder and I agree that Western law
and policy on child genital cutting is currently beset with cultural, religious,
and sex-based double-standards. We disagree about what should be done
about this. In this commentary, I argue that ‘legalizing’ childhood female
genital cutting so as to bring it into line with current treatment of childhood
male genital cutting is not an acceptable solution to these problems. Instead,
all medically unnecessary genital cutting of non-consenting persons should
be opposed equally on moral and legal grounds and discouraged by all
appropriate means.
Introduction
I am honored to have been asked to comment on the – characteristically – provocative and
forcefully argued piece by Rick Shweder (2021), ‘The Prosecution of Dawoodi Bohra
Women: Some Reasonable Doubts.’ The Dawoodi Bohra are a religious community within
the Musta’li Isma'ili Shi’a branch of Islam who, as Shweder notes, practice a gender inclusive
form of ‘circumcision’ affecting both boys and girls (Bootwala, 2019a, 2019b, 2019c). By
most accounts, the form of ritual genital cutting to which the girls in this community are
subjected (typically: nicking, pricking, or partial removal of the clitoral prepuce or hood) is
less substantial than the form to which the boys are subjected (partial or total removal of
the penile prepuce/foreskin; see Box 1 for details).

2
Box 1. A brief overview of the human prepuce. Box adapted and expanded from Myers and Earp (2020).
This situation – namely, gender inclusivity in genital cutting with typically more substantial
cutting for boys – is not unique to the Dawoodi Bohra. Rather, it applies to many Muslim
communities, particularly among those established throughout parts of South and
Southeast Asia (Dawson et al., 2020). Indeed, from a global perspective, virtually all
communities that practice ritual female genital cutting of minors, whether Muslim or
otherwise, also practice ritual male genital cutting of minors, often in a parallel ceremony
serving similar socioreligious functions (Abdulcadir et al., 2012). This is true not only in Asia,
as mentioned, but also in parts of Africa and the Middle East. Depending on the community,
the form(s) of cutting it has adopted, and the extent to which the practice has been
medicalized, either the male or female version of the ritual may be more substantial or
risky, with variable implications for health and sexuality (Shahvisi & Earp, 2019).
In this respect, therefore, the Dawoodi Bohra should not be seen as an unusual or isolated
case. Nevertheless, following migration to -- and largely successful integration within -- such
countries as the United States, United Kingdom, and Australia, the Dawoodi Bohra have
been thrust into the spotlight in recent years, primarily due to high profile ‘FGM’
1
court
cases and often sensationalist media coverage thereof (Earp, 2020a; O’Neill et al., 2020;
Rogers, 2016). Although research suggests that most, chiefly African, communities that
practice female and male genital cutting together have been willing to suspend the female
‘half’ of their initiation rites following migration to Western countries (Creighton et al.,
2019; Johnsdotter, 2019; Johnsdotter & Essén, 2016; Karlsen et al., 2019, 2020), in the case
1
Non-Western-associated forms of medically unnecessary female genital cutting have been defined as ‘female
genital mutilation’ or FGM by the WHO; this language is reflected in most country-level legislation aimed at
criminalizing such cutting as well. For a recent summary of scholarly critiques of the WHO terminology, see
Earp and Johnsdotter (2021). See also Ahmadu (2016); Duivenbode (2018); Njambi (2004); Oba (2008).
The genital prepuce is a shared anatomical feature of both male and female members of all human
and non-human primate species (Cold & Taylor, 1999). In humans, the penile and clitoral prepuces
are undifferentiated in early fetal development, emerging from an ambisexual genital tubercle that is
capable either of penile or clitoral development regardless of genotype (Baskin et al., 2018). Even at
birth -- and thereafter -- the clitoral and penile prepuces may remain effectively indistinguishable in
people with certain intersex traits or differences of sex development (Hodson et al., 2019; Fahmy,
2015; Pippi Salle et al., 2007). The prepuce is an integrated feature of the external genitalia, having
evolved to function in concert with other genital structures; for example, it forms the anatomical
covering of the glans penis or clitoris, thereby internalizing each and ‘decreasing external irritation
and contamination’ (Cold & Taylor, 1999, p. 34). In the case of the penile prepuce, an additional
function – alongside its biomechanical role in sexual intercourse (Purpura et al., 2018) – is to protect
the urinary opening from abrasion, as this runs through the penile, but not the clitoral glans (Fahmy,
2020). The penile prepuce has a mean reported surface area of between 30 and 50 square
centimeters in adults (Kigozi et al., 2009; Werker et al., 1998) and is the most sensitive part of the
penis, both to light touch stimulation and sensations of warmth (Bossio et al., 2016; Sorrells et al.,
2007). The clitoral prepuce, while smaller in absolute terms, is continuous with the sexually-sensitive
labia minora; it is also an important sensory platform in its own right, and one through which the
clitoral glans can be stimulated without direct contact (which can be unpleasant or even painful)
(O’Connell et al., 2008). Regardless of a person’s sex, the human 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’ (Cold & Taylor, 1999, p. 34).

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of the Dawoodi Bohra, there evidently has been a desire among some devout members to
continue genital cutting on a gender-inclusive basis. For allegedly acting on this desire, they
have been subjected to arrest, incarceration, family separations, stigmatizing treatment,
and criminal prosecution (Shweder, 2021).
Tensions in Western law and medical ethics
As Shweder argues, this situation highlights an uncomfortable tension in Western law and
policy, and in contemporary codes of medical ethics. In particular, it throws into sharp relief
the different degrees of protection that equally non-consenting minors have been granted
from medically unnecessary
2
genital cutting, depending on the sex characteristics with
which they were born. There is now, for example, a large literature objecting to the ongoing
failure to protect children with intersex traits from such cutting, despite little reliable
evidence that the surgeries to which they are subjected (i.e., for ‘cosmetic’ purposes) are
conducive to their long-term best interests (for a biblography, see Carpenter, 2020). And as
illustrated by the case of the Dawoodi Bohra, even non-consenting children within the same
families who have female-typical, as opposed to male-typical, sex traits are treated
differently when it comes to protection from such genital cutting, even when anatomically
homologous tissues are at stake (Box 1). This striking comparison – between female and
male so-called ‘circumcision’ within this Muslim community – forms a backbone of
Shweder’s analysis (see Table 1 for further comparison).
(Baskin et al., 2018; Bossio et al., 2016; Cold & Taylor, 1999; Fahmy, 2015, 2020; Hodson et al., 2019; Kigozi et al., 2009; Myers & Earp, 2020; O’Connell et al., 2008; Pippi Salle et al., 2007; Purpura et al., 2018; Sorrells et al., 2007; Werker et al., 1998)
(Adler, 2012; Askola, 2011; Boyle et al., 2000; Brigman, 1984; Davis, 2001; Earp et al., 2017; Earp, 2020a; Geisheker, 2013; Mason, 2001; Merkel & Putzke, 2013; Price, 1997; Somerville, 2004; Svoboda et al., 2016, 2019).
Table 1. Comparison of female and male ‘circumcision’ in Western law and health policy.
Procedure/
Status
‘Female circumcision’ (FC): nicking, pricking, or
partial removal of the clitoral prepuce/hood
‘Male circumcision’ (MC): partial or total removal of
the penile prepuce/foreskin
Physical
assault
and
battery
If non-consensual, medically unnecessary FC is
legally considered to be physical assault and
battery (which parents are not entitled to
authorize for their children) (see, e.g., United
States of America vs. Jumana Nagarwala et al.,
2018).
Though more physically invasive, MC is not treated
as physical assault or battery -- even when it
happens within the same families as FC under
otherwise identical conditions -- despite meeting
similar legal-definitional criteria (Adler, 2012;
Askola, 2011; Boyle et al., 2000; Brigman, 1984;
Davis, 2001; Earp et al., 2017; Earp, 2020a;
Geisheker, 2013; Mason, 2001; Merkel & Putzke,
2013; Price, 1997; Somerville, 2004; Svoboda et al.,
2016, 2019).
Genital
mutilation
In many jurisdictions, FC has additionally been
defined as an instance of the crime of genital
‘mutilation,’ even if performed by clinically
trained personnel with pain control in a sterile
environment -- and even if there are no long-
term physical complications, functional
difficulties, or visibly altered anatomy (Earp,
2020b; O’Neill et al., 2020; Rogers, 2016).
MC is nowhere defined as ‘mutilation,’ even when
performed by clinically untrained personnel with no
pain control in non-sterile environments – even
though it necessarily involves the removal of healthy
tissue, alters the biomechanics of the penis (Taylor
et al., 1996), results in an easily noticeable change
to the appearance of the organ, and often leaves a
prominent scar (Fahmy, 2019).
2
According to a recent international statement, ‘an intervention to alter a bodily state is medically necessary
when (1) 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 (2) the intervention, as performed without delay,
is the least harmful feasible means of changing the bodily state to one that alleviates the threat’ (BCBI, 2019,
p. 18). Reasons for considering medical necessity, as opposed to, for example, perceived cultural or religious
necessity, as the threshold criterion for permissibly cutting the genitals of an individual who cannot (yet)
consent will be discussed later on.

4
Medical
ethics
Even if it were legal to do so, from a medical
ethics perspective, it is widely understood that
doctors cannot within the scope of their
professional duties permissibly engage in
medically unnecessary cutting of the clitoral
prepuce of a non-consenting person (FC), even at
the request of her parents (i.e., parental ‘proxy’
consent for such cutting is considered invalid),
regardless of the level of risk entailed by the
procedure (Askew et al., 2016).
Within the same healthcare contexts, doctors
routinely comply with requests to excise the healthy
penile prepuce of non-consenting children (MC),
typically citing parental ‘proxy’ consent as a
sufficient justification, notwithstanding that the
procedure is medically unnecessary and, like any
surgery, carries non-trivial risks (Darby, 2015; Edler
et al., 2016; Hung et al., 2019).
Religion
Great efforts are made to ‘disassociate’ FC from
religion, often by emphasizing that FC is not
mentioned in the Quran, the primary scripture of
Islam (Duivenbode & Padela, 2019b). The fact
that FC is recommended in secondary Islamic
sources considered authoritative by some Muslim
scholars and communities is ignored or
downplayed (Asmani & Abdi, 2008). Even if FC is
acknowledged to be religiously meaningful for
some groups (as opposed to ‘merely cultural’),
this is not considered sufficient reason to allow
the practice (for example, some laws explicitly
state that religion is not an excuse for FC) (e.g.,
STOP FGM Act, H.R. 6100 (116th), 2021).
Even in ostensibly medical contexts, efforts often
are made to associate MC with religion, typically by
emphasizing that MC is mentioned in the Torah, the
primary scripture of Judaism. The fact that MC is not
mentioned in the Quran, the primary scripture of
Islam, is almost never cited as evidence that it is ‘not
a religious practice’ for Muslims; rather, the fact
that it is recommended in secondary Islamic sources
may be highlighted. However, even when MC is
practiced for reasons that have nothing to do with
religion – i.e., ‘merely cultural’ reasons, as in the
vast majority of MCs in the United States – it is still
widely considered to be ethically acceptable.
Health
benefits?
Whether FC might have ‘health benefits’ is not
even entertained. But if it did have health
benefits – such as a reduced risk of acquiring a
urinary tract infection, vulvar cancer, or some
sexually transmitted infections (such as HIV)
following sexual debut -- this would not be
accepted as a reason to go ahead with the
procedure on a non-consenting child, unless the
purported benefits (a) were statistically likely and
essential to the child’s well-being (taking into
account alternative means of prevention and/or
treatment of disease), (b) primarily applied
before the child was capable of consenting, (c)
could not be achieved in a less harmful way (e.g.,
non-surgically), and (d) had a strong evidence-
base with respect to the procedure as performed
in childhood in the relevant epidemiological
environments.
Whether MC might have ‘health benefits’ is
regularly entertained; indeed, the question is
actively pursued. Purported benefits include a
reduced risk of acquiring a urinary tract infection,*
penile cancer,+ or some sexually transmitted
infections (such as HIV)# following sexual debut.
These purported benefits are widely accepted as a
reason to go ahead with the procedure on a non-
consenting child, even though the purported
benefits are (a) not statistically likely and/or
peripheral to the child’s well-being (taking into
account alternative means of prevention and/or
treatment of disease), (b) primarily apply after the
child would be capable of consenting, (c) can be
achieved in less harmful ways (e.g., non-surgically),
and (d) have a weak or inconsistent evidence-base
with respect to the procedure as performed in
childhood in the relevant epidemiological
environments.#
* According to the American Academy of Pediatrics (AAP, 2012), approximately 100 MCs would be required to prevent 1 urinary tract infection (UTI).
Because this same hypothetical UTI could almost always be treated with antibiotics with no surgical risk or tissue loss – as is done for UTIs in girls,
who get them at a much higher rate than boys – it is not medically or ethically reasonable to rely on surgery in boys as a pre-emptive measure.
+ According to the AAP (2012), between 909 and 322,000 non-consensual (newborn) MCs would be required to prevent 1 case of penile cancer. Penile
cancer is among the rarest cancers in Western countries with modern healthcare systems, primarily occurs in men of advanced age who have
multiple risk factors (e.g., smoking), can typically be diagnosed at early onset, and may often be treated with a targeted excision that does not require
a full circumcision (Frisch, 2017).
# Data suggesting a role for MC in reducing female-to-male HIV transmission comes from three trials of adult, voluntary circumcision in parts of sub-
Saharan Africa with epidemics of heterosexually transmitted HIV (Auvert et al., 2005; Bailey et al., 2007; Gray et al., 2007). A fourth trial, stopped
early for ‘futility,’ showed an increased risk of male-to-female HIV transmission following circumcision (Wawer et al., 2009). Meanwhile, large-scale
studies of non-voluntary circumcision of infants and children in Global North settings (e.g., Canada and Denmark) suggest no protective effect against
HIV or other STIs (Frisch & Simonsen, 2021; Nayan et al., 2021).

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Given the considerations raised by Shweder (2021) and expanded upon in Table 1 (above), I
agree that unjust double standards currently are being applied to the Dawoodi Bohra and to
other Muslim and non-Muslim communities that practice both male and female
‘circumcision’ (see also Davis, 2001, 2003). I also agree with Shweder (among other subject-
area experts) that the World Health Organization (WHO) is an unreliable and unscholarly
source of information on childhood genital cutting practices, whether female or male (e.g.,
Johnsdotter, 2020; Shell-Duncan & Tierney, 2008). And I agree that the differential
protections afforded to children against such practices depending on their sex
characteristics or the religion of their parents is unjustified and unsustainable (Earp, 2015a).
Shweder’s analysis is thus a much-needed and long overdue intervention into the debate,
and I hope it has the intended effect of encouraging people – including journalists,
legislators, and policymakers at the WHO – to rethink their biased and incoherent approach
to this issue.
To keep the conversation going, I will now focus for the rest of the essay on where Shweder
and I disagree.
Goose, gander, or gosling: When (and why) is it wrong to cut a person’s genitals?
In previous publications, my co-authors and I have argued at length that all non-consenting
persons, including non-consenting children,
3
deserve protection from medically unnecessary
genital cutting, regardless of their sex characteristics (e.g., Earp, 2015b, 2016a, 2020a; Earp
et al., 2021; Earp & Steinfeld, 2017, 2018; Steinfeld & Earp, 2017; see also, e.g., Möller,
2020; Munzer, 2018; Shahvisi, 2016; Svoboda, 2013; Tangwa, 1999, 2004; Townsend, 2020).
Shweder takes a contrary view. As he sees it, male and female ‘circumcision’ (see Table 1)
should be permitted in Western countries, even when performed without the consent of
the affected person in the absence of any urgent medical need. As he puts it, ‘if the practice
is legal for the gander why should it be banned for the goose?’ (Shweder, 2021, p. 3).
In making this argument, Shweder allies himself with a small but highly influential group of
scholars including Jacobs and Arora (e.g., Arora & Jacobs, 2016; Jacobs, 2022; Jacobs &
Arora, 2017), Mazor (2013), Porat (2021), Duivenbode and Padela (2019a, 2019b),
Dershowitz (see Sales, 2017), and Diekema (see AAP, 2010). These authors have, at various
points, adopted an argumentative strategy that takes for granted the moral and legal
permissibility of medically unnecessary, non-consensual male circumcision, and builds on
this assumption to urge tolerance, within Western liberal democracies, of certain forms of
medically unnecessary, non-consensual female genital cutting. The argument, which is
3
The phrase ‘non-consenting children’ may seem redundant, insofar as ‘childhood’ is often equated with a lack
of capacity to provide ethically valid consent to certain kinds of interventions. However, I am using ‘children’
and ‘minors’ in this essay interchangeably to refer to those members of a society who are not yet legally
considered to be adults, with all the rights and privileges associated with that status. I am nevertheless
assuming that some people who are legally minors (or children) may in some cases give valid (e.g., adequately
informed) consent to certain interventions into their bodies, depending on what is entailed by the
intervention, the child’s capacity to understand what is at stake in it, the extent to which the child’s agreement
to undergo the procedure is sufficiently voluntary, and so on (for discussion, see Earp, 2019; Murphy, 2019). I
leave open what the precise conditions are for such ‘childhood consent.’ Here, I am concerned only with those
cases in which the child is either not (yet) capable of giving ethically valid consent to a given act of genital
cutting – because, for example, they are too young or (sexually) inexperienced to understand what is at stake,
or because they are subject to too much societal pressure (i.e., with no real option to refuse without incurring
extraordinary social costs) – or in which the child is capable of consenting but withholds their consent. For the
purposes of this essay, I will assume that pre-pubertal children, infants, and newborns are incapable of
consenting to genital cutting.

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obviously strengthened by its appeal to the principle of non-discrimination, both on grounds
of sex and (parental) religion, proceeds as follows:
Premise 1. Assume that medically unnecessary circumcision of non-consenting male
children (‘child MC’) is morally permissible; at any rate, assume it should be legally
allowed in Western liberal democracies. Assume that these propositions hold
regardless of any contestable empirical claims about ‘health benefits’ that may or
may not follow from child MC (see Table 1).
Premise 2. Certain forms of medically unnecessary genital cutting or ‘circumcision’ of
non-consenting female children, including some of Types 4 and 1a on the WHO
classification (‘child FC’), are less physically substantial
4
than child MC. Moreover, if
carried out under similar conditions (e.g., by a sufficiently skilled operator using
sterile instruments) such FC can be assumed to be no more harmful (e.g., to health
or sexual functioning) than child MC.
Premise 3. If a form of non-consensual child FC is culturally meaningful to some
group and is ‘no more harmful’ than non-consensual child MC, it should (also) be
legally allowed in Western liberal democracies.
Conclusion. Non-consensual child FC (assuming it is performed by a sufficiently
skilled operator using sterile instruments) should be legally allowed in Western
liberal democracies.
Arguments in this vein tend to assume that non-consensual child MC is ‘not harmful
enough’ to justify state interference (Cohen-Almagor, 2020; Jacobs, 2021; see also note 4);
this assumption is then leveraged to argue in defense of certain forms of non-consensual
child FC – such as that allegedly practiced by the Dawoodi Bohra – that are plausibly no
more harmful than the MC ‘baseline.’ There are various ways of responding to this, one of
which is to push back on the assumption that non-consensual child MC is as harmless as its
defenders commonly suppose (Boyle, 2015; Boyle et al., 2002; Darby, 2015; Hammond &
Carmack, 2017; Shahvisi, 2016). As it happens, I agree that there are significant harms to
non-consensual child MC that often are ignored or strategically downplayed by its defenders
(see Box 2).
Nevertheless, I want to argue here that the ethical status, and perhaps also the legal status,
of medically unnecessary, non-consensual child genital cutting -- at least, but not necessarily
only, in Western liberal democracies (see below) -- ultimately does not depend on
(inevitably contentious) questions of harm,
5
much less on the set of sex characteristics with
which the child happens to have been born (Reis-Dennis & Reis, 2021). Rather, I argue, the
4
In his article, Shweder (2021) often compares how ‘extensive’ or ‘substantial’ FC is compared to MC – rather
than how ‘harmful’ it is – presumably because he recognizes that harm judgments are inescapably value-laden
and often also culturally variable (Earp & Darby, 2017). But at least one of Shweder’s implied arguments is that
the form of FC allegedly practiced by the Dawoodi Bohra is not harmful enough (compare: ‘not substantial
enough’) to justify state interference. Since Shweder frequently uses non-consensual child MC as a reference
point for what is morally permissible – and should be legally allowed – he seems to endorse the following
conditional: if a form of non-consensual child female genital cutting is culturally meaningful to some group and
is ‘no more harmful’ than non-consensual child MC, it should (also) be allowed. A similar assumption is present
in the work of other recent defenders of non-consensual child FC (e.g., Arora & Jacobs, 2016). I have therefore
made this assumption explicit as Premise 3 (above).
5
For example, should we be concerned with the ‘average’ level of harm, or should we also take into
consideration the extremes of harm that can apply to certain cases (e.g., ‘botched’ operations)? And how is
the ‘level’ of harm to be measured in either case? Supposing we could agree on a method of measuring
harm—what is an ‘acceptable’ level of harm to inflict on a child through genital cutting? Etc.

7
focal consideration should be on whether the person whose healthy genitalia are to be cut
or altered has given their own adequately informed consent. In other words, ganders and
geese may do as they please when it comes to interventions into their intimate anatomy.
Goslings, by contrast, should be protected from medically unnecessary genital cutting until
they are capable of making their own decision.(Frisch & Earp, 2018)
Box 2. Assessing the harms of non-consensual child MC: a selection of key arguments.
There are several ways to argue that non-consensual child MC is more harmful than defenders of the practice typically allow.
Briefly, these include the following:
The argument from value of the excised tissue. There is evidence that many, possibly most, individuals with intact penile
foreskins place a positive value (often quite high) on the foreskin itself (see, e.g., Ball, 2006). This is unsurprising: studies suggest
that the foreskin is the most sensitive part of the penis to light-touch sensation as well as mild sensations of warmth (Bossio et
al., 2016; Sorrells et al., 2007), both of which can contribute to intimacy and sexual enjoyment. Moreover, the foreskin—like the
female genital labia—consists of elastic, nerve-laden tissue with self-moisturizing glands. This tissue can be orally or manually
manipulated independently of, or conjunction with, other genital structures (e.g., the head of the penis), thus allowing for
particular subjective sensations, often experienced as acutely pleasurable, which are not possible if the foreskin has been
removed (the same point applies by analogy to the labia, clitoral hood, etc.) (Earp, 2016b). To make the point more generally: if
someone places a positive value on the part(s) of their body removed by genital cutting, then the removal per se is a harm to
them, irrespective of whatever other harms (e.g., surgical complications) may or may not occur (Svoboda, 2017). If someone
places a high value on the body part(s) in question, the harm to them of its being removed may be considerable.
The argument from value of choice. The same point applies to the value that many people place on being able to decide about
the ‘look’ and/or biomechanical or (other) anatomical properties of their own genitalia (their so-called ‘private parts’). There is
evidence that many individuals who were subjected to medically unnecessary genital cutting in early childhood – whether or not
the cutting led to physical ‘complications’ – greatly resent that this particular choice was taken away from them (regarding MC,
see, e.g., Bossio & Pukall, 2018; Hammond, 1999; Hammond & Carmack, 2017; Watson & Golden, 2017). If someone places a
high value on being able to decide about the ‘look’ (etc.) of their own genitalia, the harm to them of this choice being taken away
may be considerable.
The argument from physical risk. Some surgical complications agreed by all to be significant harms (e.g., nerve damage leading to
numbness or unpleasant sensations; removal of too much foreskin tissue to accommodate a full erection later in life without
discomfort or pain; accidental excision of part or all of the head of the penis; subsequent pathological narrowing of the urethral
opening causing difficulties with urination; development of penile adhesions or skin bridges, and so on) may be more common
than has often been assumed (e.g., due to problems with under-reporting) (see discussion in Frisch & Earp, 2018). However,
even if one or more of these complications is simply assumed to be rare, each can have devastating lifelong consequences for
those who, nevertheless, experience them (Shteyngart, 2021). Importantly, the seriousness of a risk is not just a matter of its
absolute likelihood (under certain conditions), but also its magnitude. Since the magnitude (degree of badness or disvalue) of
these complications can be quite significant, the risk of harm associated with MC may be considerable even if the statistical
likelihood of specific complications is considered low.
The argument from psychological risk. There is evidence that many thousands of neonatally circumcised men in the English-
speaking world are engaged in an arduous process of so-called ‘foreskin restoration’ (i.e., the attempt to create a pseudo-
prepuce by attaching weights, tapes, or other instruments to the remaining shaft skin, if any, so as to slowly stretch it out over
the course of many months or, more typically, years, with the goal of achieving at least partial coverage of the penile glans)
(Earp, 2016a; Mohl et al., 1981; Özer & Timmermans, 2020; Schultheiss et al., 1998; Timmermans et al., 2021). Many such men
report a strong feeling of resentment that their penile foreskin was removed without their consent – often irrespective of
medical complications – stating that they place a high value both on the foreskin itself (e.g., for its properties and affordances,
such as the ability to have one’s glans covered when not in a state of sexual arousal) and on the ability to make one’s own choice
about such intimate matters. While such foreskin ‘restoration’ cannot actually restore the foreskin (its specialized nerve endings,
for example, do not regenerate), it is significant that so many men are pursuing a painful and difficult process to (try to) create at
least a semblance of a pre-genitally-modified state. It can safely be assumed that such men experience considerable
psychological anguish about having been non-consensually circumcised.
Taken together, these arguments put pressure on the assumption that non-consensual child MC can be used as a ‘baseline’
standard of relative harmlessness against which non-consensual child FC can be compared. Of course, many of these same
arguments, or close analogs of them, can also be used to put direct pressure on the assumption that supposedly ‘minor’ forms of
non-consensual female genital cutting are insufficiently harmful to justify state interference.

8
An argument for personal choice in genital cutting
Over a series of papers, my co-authors and I have argued that no one should be subjected to
genital cutting, of any form, without their own informed consent. The only exception is if (1)
the person is incapable of consenting (e.g., due to intoxication, being unconscious, or being
insufficiently autonomous as in the case of most young children) and (2) the cutting is
urgently medically necessary and so cannot ethically be delayed until the person (re)gains
the capacity to consent. In other words, we have argued that ‘cutting any person’s genitals
without their informed consent … is morally impermissible unless the person is
nonautonomous (incapable of consent) and the cutting is medically necessary’ (BCBI, 2019,
p. 17).
One thing to note about this argument is what it does not state. It does not state that those
who engage in, or authorize, medically unnecessary genital cutting of a non-consenting child
should (necessarily) be subject to criminal prosecution. It is a moral, not a legal, argument;
potential legal implications will be discussed later on. Nevertheless, from a moral
perspective, it might still be objected that the argument puts too much weight on ‘medical
necessity’ as a threshold criterion for ethically cutting the genitals of a non-consenting child.
Why not make an exception for cutting that is perceived (by some) to be ‘religiously
necessary’ or ‘culturally necessary,’ for example? In other words, what is so special about
medical necessity that it should serve as the sole exception to an otherwise generally stated
moral rule?
In a recent exchange with Rabbi Josh Yuter (who posed a question very like this), I replied by
drawing a distinction between the values, norms, and beliefs that underlie perceptions of
medical necessity in Western liberal democracies and those that underlie perceptions of
(e.g.) religious or cultural necessity (Earp & Yuter, 2019). First, I gave a definition of medical
necessity (see note 2): ‘an intervention to alter a bodily state is medically necessary when
(1) 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 (2) the
intervention, as performed without delay, is the least harmful feasible means of changing
the bodily state to one that alleviates the threat’ (BCBI, 2019, p. 18).
Then, I suggested that the values, norms, and beliefs that underlie this criterion (e.g., a
desire not to die prematurely) are almost universally shared across individuals and groups,
cultural and religious frameworks, meta-ethical theories, and social epistemologies.
Accordingly, although a pre-autonomous person’s body envelope might be radically
breached by an intervention – for example, by an open-heart surgery – if the breach were
medically necessary in the above sense, practically no one would object on moral or
medical-ethical grounds, and subsequent resentment about the breach (as such) would be
hard to justify. Likewise, ‘for any person whose informed bodily preferences are not known
(because they are a baby, or perhaps a passed-out stranger who appears to need medical
attention), it is close to 100% safe to assume [that is, with a high degree of warranted
certainty] that they would consent to having their genitals touched (or cut) if (1) this was
necessary to save their life or preserve their future bodily autonomy, and (2) it could not be
delayed until they were actually capable of consenting without undermining that very aim’
(Earp & Yuter, 2019, letter 5). Moreover, it is safe to assume that the person would consent
to genital contact/cutting under these conditions across a highly diverse set of beliefs or
values they might eventually come to adopt (that is, by the time they became capable of
making autonomous decisions).

9
By contrast, the same cannot safely be assumed for such values as ‘fulfilling a supernatural
will’ or ‘ensuring group cohesion’ (Earp & Yuter, 2019, letter 4). Stated more generally, the
norms, beliefs, and values that underlie medically unnecessary genital cutting – for example,
‘the belief that a child’s body must conform to a strict gender binary; that surgery is an
appropriate means of pursuing hygiene [given effective alternatives]; that one’s genitals
must be symbolically purified before one can be fully accepted; and so on’—often are
understandably ‘controversial in the wider society and hence prone to reevaluation upon
later reflection or exposure to other points of view’ (BCBI, 2019, p. 21). Therefore, if one
assumes a multicultural context ‘with sufficient access to contrary perspectives, there will
typically be greater opportunity for someone who was pre-autonomously exposed to a
medically unnecessary genital operation to (re)construe the operation as having been
harmful or inappropriate, than for someone who was exposed to a medically necessary
genital operation, all else being equal’ (Earp, 2021, p. 4).
An example
Let us now see how this applies to genital cutting within the Dawoodi Bohra community. As
Shweder (2021) notes, along with many other Muslims, Dawoodi Bohra religious leaders
interpret the Abrahamic covenant (i.e., penile circumcision) ‘to be an act of purification of
the human body in which excess parts of the body (uncut fingernails, uncut hair, the
foreskin) are trimmed back to restore it to what they view as its original God-made natural
form’ (p. 4). When contemplating the ethics and legality of a proposed non-consensual
genital surgery, we might ask whether this religious conception of bodily integrity (i.e.,
restoration to a God-made natural form) should be given just as much weight in a secular,
liberal democracy, as the conception implied by appeals to medical necessity (i.e., a
conception according to which certain unconsented intrusions into ‘intimate’ body parts are
permissible only insofar as the intrusion is required to preserve or restore a somatic
function whose impairment poses a serious, direct, and time-sensitive threat to the person’s
well-being).
6
First, let us consider the idea that there might be ‘excess’ parts of the body. One can begin
by noting that one of these things (the foreskin) is not like the others (fingernails, uncut
hair) in that it does not spontaneously regenerate after being ‘trimmed’. The same point
applies to the clitoral prepuce. Given that there is sharp disagreement, even within cultures
with a dominant practice of child genital cutting, as to the significance or value of the
foreskin or prepuce, this fact about irreversibility seems morally significant. Nevertheless,
according to this religious version of the concept (see also Dekkers et al., 2005), a person’s
‘bodily integrity’ can only be ensured or achieved by doing something that, on a secular-
liberal understanding of the concept, literally dis-integrates the body: i.e., cutting into and
permanently removing a developmentally normal, healthy, and functional part of one’s
genital anatomy.
In the context of Western law and policymaking, a potential problem with this religious
interpretation is that, in order for the concept even to make sense, much less be morally
compelling (e.g., in evaluations of non-consensual genital cutting), one has to subscribe to a
particular and highly contentious metaphysical worldview. For example, one must believe in
the specific God of Judaism or Islam (other religions, such as Christianity or Sikhism, have a
different take on bodily integrity) (Chahal, 2004; Fadel, 2003; Glick, 2005). Such a peculiar
interpretation arguably is not well suited to serve as a conceptual basis for a generally
6
See “The Child’s Right to Bodily Integrity” (Earp, 2019) for in-depth discussion.

10
applicable legal right to bodily integrity in a secular liberal democracy.
7
In such a democracy,
the conceptual basis for legal rights must be defensible to public reason; whereas appeals to
an allegedly divine understanding of a functional body part as being extraneous cannot
satisfy this principle. Moreover, in the face of reasonable disagreement about whether a
non-consensual intervention violates bodily integrity, state neutrality favors a policy of non-
intervention, leaving the decision to the affected individual (Chambers, 2018). Finally, if one
does not happen to subscribe to the requisite metaphysical worldview (e.g., if one does not
share one’s parents’ religious beliefs, as is increasingly common in many Western countries)
(Pew Research, 2013, 2015, 2018), one may reasonably come to conclude that one’s bodily
integrity, and more specifically, one’s sexual-anatomical or genital integrity—understood
literally—has been very seriously violated indeed.
A question of scope
It is possible that the foregoing analysis does not apply with equal force in all cultural or
political contexts. For example, it may not apply with equal force in countries with deeply
entrenched traditions of communal decision-making, ‘group’ consent, or other relevantly
different background conditions. I won’t take a stand on that issue here.
8
I am confident,
however, that the argument applies to Western liberal democracies such as the United
Kingdom and the United States. I confine my remarks in what follows to this context.
In these countries, there are longstanding and deep-rooted moral and legal traditions
emphasizing the importance and ontological primacy of individual rights, including the right
to bodily integrity as that concept is commonly and secularly understood (see above).
Within these same traditions, the right to practice one’s religion is considered to be, not an
absolute or unfettered right, but rather one that is limited in various ways. For example, a
desire, however strong or sincere, to manifest one’s own religious beliefs does not entitle
one to violate (inter alia) the bodily integrity rights of others – including those of one’s own
children. (These children may not, after all, grow up to share their parents’ religious
convictions and they may reasonably resent having had those convictions permanently
engraved, so to speak, into their flesh) (Möller, 2017; Sarajlic, 2014, 2020).
In these same Western countries, children are taught, almost universally and from a young
age, that of all the various aspects of their embodied selves, their sexual anatomy – in
particular – should be considered ‘private’ and they alone should have final say over who
engages with, e.g., their vulva or penis (as well as how and under what conditions), when
7
In separate work, Shweder has drawn a distinction between what he calls ‘imperial liberals’ and ‘liberal
pluralists,’ suggesting that medically unnecessary, non-consensual child genital cutting is incompatible with the
foundational moral commitments of the former sort of liberal but not the latter (Shweder, 2009). This
distinction, while interesting, is not one I have the space to pursue here. In this paper I am simply trying to
provide reasons for opposition to such genital cutting that I anticipate will appeal to liberals of various stripes.
In other words, I am suggesting that those who support, endorse, and/or benefit from the tenets of secular,
Western democratic liberalism – notwithstanding its various purported flaws – and yet who fail to consistently
oppose medically unnecessary, non-consensual child genital cutting, are being inconsistent. Therefore, on pain
of hypocrisy, they should revise their position on at least one of these two issues. My position is that there are
much stronger reasons to give up child genital cutting than there are to weaken key liberal precepts regarding,
e.g., individual rights and bodily integrity.
8
As a reviewer notes, ‘culture itself is neither static nor homogeneous … universal human rights are historical
and constantly negotiated, implemented and monitored by national, international and transnational
institutions and policy-makers. This may, for example, mean that if policymakers address [current
inconsistencies in in treatment of male versus female child genital cutting] in global institutions, this could
impact human rights practice.’ For further discussion, see, for example, the section with the subheading ‘the
right to culture and culture of rights’ in Hernlund and Shell-Duncan (2007).

11
they are sufficiently mature to understand what is at stake (Archard, 2007; Munzer, 2018).
The only widely recognized exception to this rule, especially when it comes to adults
interacting with children’s genitals ‘pertains to necessary parental (or equivalent) care: for
example, changing diapers or help with washing’ (BCBI, 2019, p. 21). However, this
exception applies ‘only insofar as the child requires such help; a parent or caregiver who
continued to wash a child’s genitals when the child was capable of such washing on their
own would likely be acting inappropriately’ (ibid.).
The same principle applies – as children of all cultural and religious subgroups are
continually reminded – not only to their family members, but also to faith leaders, coaches
or teachers, and even to medical staff. Thus, ‘a doctor or other health care professional who
handled—much less cut into or removed tissue from—a child’s genitals beyond what was
strictly necessary for diagnosis or treatment’ would widely be understood to be ‘crossing an
ethical line’ (BCBI, 2019, p. 21).
Within such a cultural, moral, and legal milieu, one can readily see why a growing number of
individuals report feeling extremely aggrieved that, when they were at their most
vulnerable, a more powerful adult figure not only touched or handled, but actually cut into
and removed sexually sensitive tissue from, what they had been told all their lives was the
most ‘intimate’ part of their body. In many cases, the feeling of having been harmed or
wronged by genital cutting is not reducible to questions of physical damage or the incidence
of ‘medical’ complications. Rather, a feeling of having been (sexually) violated and/or having
had a ‘personal’ choice taken away from one is commonly reported among those who
object to such practices (see Box 2).
Changing perspectives and moral reasons
Even more difficult to come to terms with, for some, is the fact that it was not a stranger
who committed this perceived violation or allowed it to happen. Rather, it was their own
parents – often with the encouragement of religious leaders or other respected community
members – who authorized this unconsented intrusion into their body. Here is how one
woman, a member of the Dawoodi Bohra,
9
described her experience of coming into a new
kind of awareness or understanding about what happened to her when she was a little girl:
As the years rolled by, I attained puberty, and after experiencing my first
menstruation, I became aware of my sexuality. At this point of time, my second
eldest sister, in order to give me an understanding of sexual knowledge, gave me a
book to read [on human sexuality]. After reading that book, the full impact and
realization of that awful, painful and life-changing procedure which I was made to
undergo at the innocent age of seven years, dawned on me. … I feel robbed and
cheated of my sexuality, and feelings of inadequacy and incompleteness remain with
me till today, even at the age of 61. … After making a private self-examination, I
found that the prepuce or the entire foreskin of my clitoris had been cut off.
9
Demographic details for this individual are not available. However, in the survey from which this quote was
taken, the greatest proportion of participants resided in India (131 participants or 34%), followed by the
United States (119 participants or 31%), United Arab Emirates (9%), United Kingdom (8%), Pakistan (6%),
Canada (5%), Australia (3%) (Taher, 2017).

12
This quote comes from a survey conducted by Sahiyo (Taher, 2017, p. 55), an organization
led by women raised within the Bohra community who have come to oppose such ‘female
circumcision’ (khafz). However, as Shweder notes in his critique of the survey, it did not rely
on random sampling methods. Therefore, he cautions, we should not suppose that such
attitudes are representative of Bohra women in general. Indeed, as he stresses, a different
survey with a larger sample size and more representative participation suggests that,
‘Overwhelmingly the women in the global Dawoodi Bohra religious community support the
continuation of khafz’ (Shweder, 2021, p. 7).
As a descriptive matter, that may well be so. But the moral conclusion we should draw from
this is not clear. First, we should distinguish between the attitudes of those in the ‘global
Dawoodi Bohra religious community’ who reside in contexts other than Western liberal
democracies (i.e., the majority), who plausibly have not been exposed to alternative points
of view about their practice to the same extent as have those within the community who
have migrated to, or were born in, countries such as the US or UK. Indeed, there is a body of
evidence suggesting that women who grew up in genital cutting cultures but subsequently
migrated to Western countries often change their minds about the practice: from seeing it
as ‘normal, natural, and beautiful’ to something that is inconsistent with their newfound
notions of bodily and sexual integrity (Hanberger et al., 2021; Johnsdotter & Essén, 2016;
O’Neill & Pallitto, 2021). Since the topic of Shweder’s piece is, primarily, Western law and
policy regarding child genital cutting practices, it is a category error to cite the views of the
‘global’ Dawoodi Bohra community – most of whose members have been socialized and
continue to reside in locations outside of that cultural and legal context – in support of
Western tolerance of female ‘circumcision’ of minors.
But even if endorsement of non-consensual female ‘circumcision’ was the majority position
of Bohra women within Western migrant communities, this would not, whether on moral or
legal grounds, straightforwardly support a position of tolerance toward the procedure in
that context. It also would not show that the dissenting views of the women highlighted in
the survey by Sahiyo (the organization opposed to female ‘circumcision’) were somehow
unworthy of serious moral consideration. By way of analogy, suppose I wanted to argue that
it is wrong to eat meat because doing so is disrespectful to non-human animals. To help the
reader empathize with this position, suppose I shared stories of vegetarians within my
society who, as it happens, used to see meat-eating as perfectly normal, natural, and
ethically benign, but who – upon gaining a different perspective, possibly due to a striking
personal experience of some kind -- eventually came to see the very same practice as
morally wrong.
It would, presumably, be an odd critique of my position to point to a representative survey
of individuals from within my society -- much less a wider global community within which
meat-eating, we’ll assume, is a normative cultural practice that generally goes unquestioned
for all the usual reasons -- and stress that the overwhelming majority of survey respondents
‘support the continuation of eating meat.’ What matters for moral analysis, typically, is not
how common a given attitude is, but rather, whether the attitude is sufficiently well-
justified to do the argumentative work it is being called upon to do .
The question, then, is whether we can justify – and assign significant normative weight to --
the view that there is something morally troubling about a practice that involves the
following features, no matter how widely approved the practice may be in certain groups:

13
- a child as at a time of heightened vulnerability is physically restrained by one or
more adults;
- the child (who may or may not yet be old enough to have learned about the
‘special’ or ‘private’ status of their sexual anatomy) has their genitals exposed –
whether or not this something they want, are comfortable with, or are capable of
understanding;
- a sharp object is pressed onto their genitals, usually causing pain, but in any case
introducing a certain amount of risk (e.g., of infection, nerve damage, removing too
much tissue, etc.; see Box 2) that a person might rationally want to avoid having
concentrated on this particular part of their body (unless for reasons they
themselves endorse);
- healthy, erotogenic tissue (i.e., tissue with properties it is reasonable to value and
which those who possess the tissue typically do value, often highly) is cut or
removed, creating a wound and causing the child to bleed, without this being
medically necessary;
- whether this risk, pain, bleeding, and damage to or loss of prima facie valuable
tissue is regarded as ‘worth it,’ all things considered, depends on factors (e.g.,
contested religious beliefs or cultural values) that are far from universal and hence
prone to reconsideration or rejection upon exposure to other points of view.
My own view is that such an attitude is reasonable, even if it may not be the majority
attitude of affected individuals within cultures or subcultures where ritual genital cutting is
socially prescribed. By emphasizing a numerically dominant view within the Dawoodi Bohra
community, Shweder downplays the legitimate concerns of the ‘minority within the
minority’ – here, those women who have had an understandable shift in perspective away
from the dominant view within their group and who believe that ‘circumcision’ should be a
voluntary choice rather than something that is imposed on children.
Whose perspective should be given more weight? Consider a comparison between two
groups: those who were not genitally cut as children, but wish they had been (currently a
largely hypothetical population) and those who were genitally cut as children, but who wish
they had not been (an actual population including the woman quoted above). Members of
the first group, if they do end up sharing the metaphysical beliefs and/or cultural values of
their parents, have the option of ‘circumcision’ available to them: they can choose to have
part or all of their prepuce removed as a sign of their devotion to God or ongoing
commitment to the community. It is true that they cannot travel back in time and undergo
the procedure as a pre-autonomous child; but they can still be ‘cut’ in accordance with their
stable adult preferences and considered personal and/or communal values.
The second group, by contrast, has no comparable remedy for the resentment they feel
about what happened: they cannot ‘undo’ the genital cutting they have already endured,
nor erase the fact that it was done without their consent (Earp & Darby, 2017). From this
perspective, it seems that more moral weight should be assigned to the concerns of the
second group.

14
Legal implications
As it happens, the law in Western countries generally reflects this moral perspective, at least
when it comes to girls. In other words, Western law currently prohibits medically
unnecessary genital cutting on non-consenting female minors while allowing adult women
to pursue such cutting – as in female genital so-called ‘cosmetic’ surgery – if that is what
they choose (Dustin, 2010; Shahvisi, 2021). However, Shweder proposes that this law be
changed to allow groups such as the Dawoodi Bohra to engage in medically unnecessary
genital cutting of non-consenting girls. What’s legal for the gander, he thinks, should be
legal for the goose.
This proposal is not new, nor unique to Shweder, but it is gaining steam in recent years. In
response to a similar proposal by Jacobs and Arora in 2016, I argued against such a change
on several grounds. To make sense of these objections, it is important to understand that
medically unnecessary female genital cutting of non-consenting minors is currently illegal in
most Western countries for at least two reasons: first, in many countries, it is specifically
prohibited by so-called anti-FGM legislation. But second, and more basically, it is considered
to be a form of physical assault and battery (Table 1).
This view was recently confirmed by Bernard Friedman, the federal judge who oversaw the
first-ever court case in the United States to test the national-level anti-FGM law passed by
Congress in 1996. This case primarily concerned a member of the Dawoodi Bohra, Dr.
Jumana Nagarwala, who was charged with carrying out multiple instances of ‘FGM.’ In
striking down the national law as unconstitutional (Dyer, 2018), Friedman argued that the
statute concerned activity that was already illegal at the state level. ‘As despicable as this
practice may be,’ he wrote -- referring to female ‘circumcision’ as allegedly practiced by the
Bohra (i.e., nicking, pricking, or partial removal of the clitoral prepuce) -- ‘it is essentially a
criminal assault’ (United States of America vs. Jumana Nagarwala et al., 2018, p. 27).
Friedman argued that Congress isn’t permitted, on federalist grounds, to regulate ‘local
criminal activity’ under the U.S. Constitution unless it (e.g.) substantially affects interstate
commerce. In passing the 1996 law, therefore, it overstepped its authority: ‘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’ (ibid.).
Since female ‘circumcision’ on this view—if non-consensual and medically unnecessary—is
essentially a form of criminal assault, irrespective of whether the practice is (also)
prohibited by specific anti-FGM legislation, an attempt to fully ‘legalize’ the practice would
have significant implications. As I argued previously (quoting and paraphrasing here from
Earp, 2016a, p. 161), such an attempt would likely result in:
(a) disturbances and inconsistencies throughout Western legal systems, possibly
requiring new definitions of bodily assault and opening the door for inadvertent legal
protection of a wide range of potentially harmful practices (typically carried out on
children, who cannot adequately defend themselves);
(b) removal of an important tool that reformers from within the affected
communities rely on to solve the ‘collective action’ problem introduced by child FC
(namely, the problem of unilaterally stopping the practice for one’s daughter if
others do not also do so, potentially increasing the risk of social ostracization);

15
c) regulatory challenges in tracking and monitoring child FC cutting sessions to
ensure that they were not being used as opportunities for more invasive procedures;
d) exposure of young girls to an unknown amount of surgical risk in the absence of
medical need, thereby placing doctors in an untenable position with respect to their
professional duties; and
(e) widespread outrage among women who consider themselves victims and/or
survivors of FC as well as their allies, and other forms of political backlash.
These points suggest that there are strong reasons not to pursue ‘legalization’ of child FC
when medically unnecessary and non-consensual (assume these qualifications in what
follows) at least in Western liberal democracies. What, then, are the implications for child
MC (similarly qualified)?
One person’s modus ponens is another’s modus tollens. In a striking development, a number
of legal scholars have begun to argue (building on scholarship going back to the 1980s) that
child MC, like child FC, is also essentially a criminal assault (Adler, 2012; Adler et al., 2020;
Boyle et al., 2000; Merkel & Putzke, 2013; Somerville, 2004; Svoboda et al., 2016, 2019; see
also Price, 1997; Brigman, 1984). According to this view, it is not that such MC might need to
be ‘banned’ so as to make it illegal (as is increasingly being entertained in some countries,
including Iceland in recent years; see Notini & Earp, 2018, for an analysis); rather, it is
already unlawful, even if it is not currently treated that way (because its status as an assault
is not yet widely appreciated). Referring to the situation in Germany, for example, Merkel
and Putzke argue (2013, p. 447):
Circumcision therefore is, and, in a material sense, remains, unlawful even if
performed as a religious rite. A different question is whether parents who arrange
for a circumcision to be performed on their child (along with the person who actually
performs it) should be liable to criminal prosecution. If, from a subjective point of
view, there is no acceptable alternative to circumcision, as might be the case for
devout Jews, a legal ground for a personal exemption from punishment by
exculpation might be considered. It certainly does appear excessive to stigmatize
such well-meaning and piously minded parents as criminals. To abstain from raising
criminal charges would not, however, alter the fact that the circumcision procedure
itself remains unlawful.
How, or whether, to extend this analysis to child FC is worthy of further consideration. One
possibility is that neither child FC nor child MC should be fully legalized (for the above-stated
reasons), but both could be, as it were, ‘decriminalized’ – akin to drug use on the so-called
Portugal model (Rieder, 2021). On this model, the use or possession of certain drugs
remains illegal, but criminal penalties are not applied if the amount of drug in possession is
sufficiently small (e.g., less than a 10-day supply); the focus of policy shifts from carceral
solutions to harm-reduction measures and public health promotion; and the authority to
impose non-criminal consequences, where applicable, shifts from police, prosecutors, and
other officials within the criminal justice system to civil servants charged with dissuasion
over punishment. Given that criminal law, as applied to drug use or possession, as with
many other perceived social problems, often has been applied in a racially discriminatory
manner, such “decriminalization” (if not outright legalization) has strong support among
scholars of race and racism and drug policy researchers alike (Earp, Lewis, et al., 2021).

16
Applying such an approach to genital cutting might involve the following: affirming the
unlawful status of both male and female child ‘circumcision’ (increasingly advocated by legal
scholars who consider both practices to constitute physical assault and battery when
medically unnecessary), but withholding criminal penalties (e.g., jail time) so long as the
type of cutting remained below some threshold of severity (such that, for example, non-
consensual acts of infibulation would remain subject to criminal sanction). A similar shift
from carceral solutions (which disproportionately affect people of color) to harm-reduction,
public health promotion, and non-coercive strategies of dissuasion could likewise be
pursued.
An advantage of this approach is that it would eliminate the double standard in legal
reactions to child genital cutting, which currently differ as a function of the child’s gender
and/or sex characteristics and/or the religious affiliation of the child’s parents. Such double
standards, presumably, are themselves unlawful, as they seem to violate the equal
protection clause of the U.S. Constitution (and similar legal standards in other countries)
(Bond, 1999; Davis, 2001).
A further advantage of setting aside criminal sanctions – at least as a temporary measure,
for the reasonably near future – is that criminalization of child FC often has failed in its aims
(for example, driving the practice underground while also inadvertently harming affected
communities) (Berer, 2015, 2019; Duivenbode, 2021; Johnsdotter, 2019), while other, less-
coercive social change efforts (e.g., education, consciousness-raising, introduction of
alternative rites) could be prioritized. These latter kinds of efforts are less likely to lead to
(further) stigmatization of already-marginalized minority groups, much less on an unequal
basis with more established or less-marginalized minority groups (e.g., criminalization of
Muslims but not Jews for substantively similar practices). Moreover, evidence suggests that,
at least in certain contexts, such ‘softer’ efforts may in fact be more successful (i.e., in
actually driving down rates of child genital cutting based on changing hearts and minds,
rather than driving the cutting underground based on the threat of punishment) (see
generally La Barbera, 2017).
Meanwhile, reformers from within practicing communities could still appeal to the fact that
child genital cutting (whether female or male)
10
is strictly speaking illegal, and use this as
leverage to persuade fellow community members, if not to give up the practice entirely, at
least to leave the decision to children when they are older. By the same token, as more
people became aware of the unlawful (if not necessarily criminal)
11
status of such child
genital cutting, it would likely be easier for parents who want to forego the practice – and
who would do so if not for ongoing pressure from other community members to conform to
tradition (see, e.g., Meoded Danon, 2021) – to take a stronger stand for their values.
Conclusion
I am not here claiming that this is the approach that should be taken, though I do think a
move in this direction would represent an improvement over the status quo. There are no
perfect solutions and not everyone will be pleased. Many advocates for children’s rights – to
bodily integrity, to sexual and religious self-determination, and so forth – would clearly like
to see both male and female child genital cutting criminalized, typically believing (albeit
10
Indeed, regardless of the child’s sex characteristics, i.e., including children with intersex traits.
11
In the sense of liable to having criminal sanctions applied. Of course, non-criminal sanctions (e.g., fines, or in
the case of medical personnel, loss of license) might still be applicable.

17
contestably) that this is the surest way to protect children going forward. Advocates for
parental rights and religious freedoms, by contrast, are likely to balk at the idea that any
legal restrictions should be invoked in this context (e.g., Jacobs, 2022). What is clear, and
where professor Shweder and I agree, is that the current situation whereby males and
females, as well as, in practice, Muslims and Jews (and native-born white people and black
African immigrants, and so on) are treated fundamentally differently under Western law is
unjust and unsustainable.
12
References
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12
In this respect, we are both in agreement with a great many of our peers and colleagues (for example, see:
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