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Washington’s Pending Child Protection Legislation: Unconstitutional!

March 18, 2019

by
Georganne Chapin, MPhil, JD
Intact America
March 17, 2019

The state of Washington has a pending child protection bill before its legislature. While we share legislators’ condemnation of the activity this bill seeks to regulate, we also wish to point out the fact that the bill violates the Constitution of the State of Washington.

Senate Bill 5257, introduced January 15, 2019, would prohibit the practice of “female genital mutilation” or FGM – i.e., the culturally-based practice of pricking, incising, or cutting a minor girl’s genitals. The bill arose, in part, as a response to the November 2018 dismissal by a federal court in Michigan of a case against a physician prosecuted under a similar federal law (18 U.S. Code § 116, also known as the Federal Prohibition Against Female Genital Mutilation Act of 1996) for operating on the genitals of three young girls. In dismissing that case, the judge said that despite the heinous actions of the physician (a woman from an Indian sect that practices female genital cutting), the federal law under which she was charged was unconstitutional because the behavior it proscribed falls under the rubric of “local criminal activity,” which is properly regulated by states.

So, what is wrong with this Washington State bill prohibiting medically unnecessary genital surgery on girls? In three words: it is unconstitutional!

Washington’s Constitution contains a “equal protection” clause which states: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” In other words, Washington’s laws should never favor, protect, or privilege one group over another. While the anti-genital-mutilation law summarized above rightfully protects girls from medically unnecessary surgery on their genitalia, whether carried out in a “cultural” or medical context, it denies through omission such protection to boys.

Should not all children be protected from the medically unnecessary surgical modification of their genitals? Are boys not entitled to the same rights to bodily integrity, autonomy, and self-determination as girls?

“Routine” infant male circumcision – like “female genital mutilation” – entails the removal of a normal, natural part of a boy’s genitals in the absence of any medical necessity. Sometimes – as with female genital mutilation – male circumcision is performed for “cultural” reasons (I purposely draw no distinction between “culture” and “religion,” as there is simply no justification to favor the practices of groups who can point to a written text over those with a long oral tradition). And sometimes – just as with intersex surgery – male circumcision is performed simply as a social or cosmetic procedure, justified as in the child’s best interest, helping him to “fit in,” “be normal,” or “avoid problems in the future.”

It is not known how many girls are subjected to FGM in the United States, but the number is certainly less than one percent. By contrast, more than half of U.S.-born boys – more than one million babies each year – are subjected to the brutal removal of their their healthy, normal foreskins within a few hours of days of their birth.

Until the mid-19th century, surgical amputation of the foreskin was practiced only by Jewish and Muslim people, and by some tribal cultures. Victorian doctors introduced the practice in the United States and other Anglophone countries to stop boys from masturbating. By the mid-20th century, “routine” circumcision had become embedded in American medicine, and still today, the United States is the only non-Jewish, non-Muslim country in the world where doctors routinely remove baby boys’ foreskins (South Korea and the Philippines also have high circumcision rates because of the influence of U.S. military hospitals.) In the United States, the incidence of routine infant circumcision varies widely by region. At approximately 10 percent for in-hospital circumcisions, Washington’s current circumcision rate is well below the national average.

American men of all ages are expressing indignation about having undergone the removal of their normal, functional foreskins when they were too young to either consent or resist.

Legislators from Washington and every other state seeking to redress the ethically and medically unjustifiable practices of genital surgery performed on girls must take notice, to ensure that any new laws be consistent with the “equal protection” clauses of their constitutions, and to protect all children.

8 Comments leave one →
  1. Edward von Roy permalink
    October 1, 2019 3:43 am

    Completely according to age and development, a child (child is a person below eighteen years of age) is not able to consent to a medically not-indicated female or male circumcision (FGM or MGM).

    Even the least invasive form of female or male circumcision harms by limiting the innate potential of man.

    Genital circumcision is nothing but the result of group pressure and, once carried out, destroys the confidence in the fellow human beings.

    Because that is the unspoken message: We accept you only if you obey, with an intact genital you are not welcome with us.

    In particular, the trust between father and child as well as between mother and child is undermined by the ritual. The child will soon recognize: you could not protect me or you did not want to protect me.

    The child is angry at his parents and, on the other hand, in future, will decide to have his child circumcised or will motivate his child to be circumcised. We must succeed in ending this cycle of fear, violence and mutilation.

    We also have to ban the FGM type Ia amputation of the clitoral hood as well as the FGM type IV subtype incision or needle stitch.

    The WHO classification for female genital mutilation may not under any circumstances be split into a still prohibited and another, allegedly low-invasive and then permitted part.

    Let us fight for the worldwide ban on any medically unidentified operation on human beings under 18 years of age.

    .
    .

    FGM
    Arab: khitan al-inath (ختان الإناث) “female circumcision”, or: khitan al-banat (ختان البنات) “circumcision of the daughters”, other terms: ḫafḍ (خفض‎) or ḫifaḍ (خِفَض‎), (literally “lowering” or “deepening”), Dawoodi Bohra (Shia muslim sect) khatna, Indonesian: sunat perempuan (khitan wanita)

    FGM and Islam

    Shia view

    Shiite religious texts, such as the hadith transmitted by Al-Sadiq, state that „circumcision is makruma for women“ (noble but not required).

    FGM is performed within the Dawoodi Bohra community in India, Pakistan, Yemen and East Africa. In 2017 two doctors (Dr. Jumana Nagarwala and Dr. Fakhruddin Attar) and a third woman connected to the Dawoodi Bohra in Detroit, Michigan, were arrested on charges of conducting FGM on two seven-year-old girls in United States.

    Sunni view

    Different schools of Islamic jurisprudence have expressed different views on FGM. The Maliki school of Islamic jurisprudence views it as makruma (noble but not required). The Hanbali school sees it as sunna (good practice), some Clerics see it as obligatory (wajib). For the Hanafi school it is preferred, and for the Shafi’i school FGM is obligatory (wajib).

    Hadith

    The Prophet said to Umm Atiyya, or: to Umm Habiba:

    أشمِّي ولا تنهَكي
    ašimmī wa-lā tanhakī
    [Cut] slightly and do not overdo it

    Or Muhammad said:

    اختفضن ولا تنهكن
    iḫtafiḍna wa-lā tanhikna
    Cut [slightly] without exaggeration

  2. WeepingIntactivist permalink
    April 21, 2019 11:52 pm

    Please can you recommend a support group for expecting families. My partner is threatening to leave me for wanting to leave our future son intact, quoting religious and cultural reasons. A real person or group that does outreach would be great as partner does not like reading “research.” Thanks

    • April 22, 2019 8:33 am

      Fear, misinformation and defensiveness drive this position — whether in a man or a woman. It’s extraordinarily important to resolve the problem before “giving in” and allowing your son to be circumcised against your (correct) instincts. If nothing else, simply buying time is helpful. So long as your son is intact, you have a good shot at changing your partner’s mind. (“We can always do it later,” my midwife friend told her husband for YEARS, until her son was old enough to say, “I will NEVER do it!”)

      Speaking of never, in all my years doing this work, I have NEVER met a parent who said it “worked out” to ignore or repress the instinct to protect their child and allow the circumcision to go forward.The resentment toward to the parent who insisted on cutting the baby don’t just go away, and neither do the feelings of guilt and grief for the child whose body was violated.

      Are you on Facebook? Here’s Intact America’s FB page: https://www.facebook.com/IntactAmerica/. Another really good group to join is “Your Whole Baby.” https://www.facebook.com/groups/YWBCommunity/. You can post questions there, and get a lot of support. Finally, there is a Christian Facebook page called “Little Images,” https://www.facebook.com/littleimgs/, and its associated website
      http://www.littleimages.org, which have excellent info and suggestions (if you’re not religious, the same arguments work by substituting “nature” for “God”).

      Finally, please write to me at gchapin@intactamerica.org, and I will put you in touch with parents who have been through this nightmare.
      Georganne Chapin, Exec Director, Intact America

  3. Adam Gregorich permalink
    April 11, 2019 9:57 am

    Thank you as well. After all, does our constitution not end “in liberty and justice for all”?

  4. John Adkison permalink
    March 19, 2019 6:16 pm

    Thank you for addressing my state! Anyone that wants to help address Washington State, please let me know as I have multiple irons in this fire.

  5. TLCTugger permalink
    March 18, 2019 9:40 pm

    ^^ Victorian doctors introduced the practice in the United States and other Anglophone countries to stop boys from masturbating. ^^

    It should be noted that it failed to do so.

    Hundreds of thousands of men are doing non-surgical foreskin restoring to undo some of the predictable sexual damage of childhood circumcision. Informed adults can decide for themselves – unless we fail to protect them a children.

    • March 21, 2019 7:46 am

      Thanks, TLC! I guess I thought readers would know that the masturbation prevention measure didn’t work!

  6. Fred Hayward permalink
    March 18, 2019 12:16 pm

    Thank you for standing up to this double standard and sticking up for boys.

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