Legal Circumcision Battle Goes State AND Federal

Why a Legal Battle?
On September 30, 1996, a law was passed that would prohibit any form of female genital cutting on non-consenting minors. Even the mildest form of female genital cutting is condemned as "female genital mutilation," and it is prohibited under federal law, without exception for religious rituals. The law, of course, allows for medically indicated procedures, and would not criminalize a doctor if the procedure were medically or clinically warranted.

Last year, the AAP tried to endorse a "ritual nick" in girls, under the pretext that doing so might dissuade parents from taking their daughters abroad to other countries to have more severe forms of female genital cutting performed. The AAP admitted that the proposed "ritual nick" would dwarf in comparison with male infant circumcision. May 2010 would not end before there was a world outcry, and an embarrassed AAP was forced to retract their statement. The message was clear; under absolutely no circumstances were medical professionals ever to come near a girl's vulva with a knife, not even for a "ritual nick."

The establishment of such a law would seem like a noble gesture, were it not for a glaringly obvious inconsistency; the federal ban on female genital cutting (AKA female genital mutilation) protects members of only one sex against the needless cutting of their genitals, defying the 14th amendment, which says that citizens shall not be deprived of the equal protection of the law. While "religious freedom" and "parental choice" would never be enough to justify the slightest "ritual nick" in girls, for whatever reason, these are acceptable alibis for the circumcision of healthy, non-consenting boys.

To human rights activists who see the genital cutting of healthy, non-consenting individuals of either sex as mutilation, also known as "intactivists," it seemed only logical that such a law which offered protection to only one sex ought to be challenged. If neither "religious freedom" nor "parental choice" are enough to justify the slightest "ritual nick" in girls, then it only follows that the same applies to boys. A law that views the genital cutting of one sex as "mutilation" regardless of "religious importance" but not the other is not only sexist, bigoted and self-serving in nature, but also unconstitutional. Boys deserve the same protection under the law.

MGMBill.org
To directly challenge this federal law that only offers girls protection from all forms of genital cutting, a group of intactivists have come together to lead initiatives on all levels (local, state and federal) to pass identical laws that would protect boys from genital cutting. The organization MGMBill.org seeks to eventually amend the currently existing U.S. Female Genital Mutilation Act of 1996 so that boys are also protected from needless genital cutting.

The text of the MGMBill's proposal is partly modeled after the original FGM Bill which was submitted to the House of Representatives on February 14, 1995, along with its companion bill in the Senate. In addition to protecting boys from circumcision, the MGM Bill would prohibit premature forcible retraction of the foreskin (which leads to genital infection, scarring, and other problems), and the cutting of ambiguous or hermaphroditic genitalia, so that intersex children are also protected from medically unwarranted genital cutting.

Lastly, the bill borrows from the U.K. Female Genital Mutilation Act of 2003 by:

(a) making it a crime for persons to assist with or facilitate the practice of genital mutilation on minors or non-consenting adults
(b) increasing the maximum penalty of offense to 14 years imprisonment
(c) specifying that genital mutilation may only be performed if it is medically necessary to the physical health of a child, and
(d) prohibiting persons in the U.S. from taking or sending children or non-consenting adults on circumcision holidays where arrangements are made to have their genitals mutilated in other countries under the pretext of a holiday or vacation trip.

The MGM Bill proposal has been submitted to every member of Congress seven times - most recently on January 10, 2011. MGMBill state offices have also submitted state level MGM Bill proposals to all members of various U.S. state legislatures. (If you would like to help these proposed bills become law, please visit MGMBill.org's Take Action page.)

Challenges in Achieving Democracy
The biggest challenges in bringing equal protection to boys under the law are interest groups who would like to see that male infant circumcision continue in this country, namely doctors who profit from the routine circumcision of infant boys (1.3 million boys are circumcised annually in this country), and religious organizations who consider the circumcision of infants to be an indispensable religious custom (the circumcision of infants and minors is an important religious custom for Jews and Muslims).

MGM Bill organizers have a difficult enough time getting their voice heard, but even when they do, they're faced with bias, if not outright ignorance from those in government who are supposed to set aside their own personal bias, listen to both sides of the debate and make a fair judgement.

MGM Bill organizers were finally able to get a Senate sponsor for their measure in the state of Massachusetts in January, 2007, and last March, the bill was given a public hearing by the Joint Committee on the Judiciary. The chair of the Committee, Cynthia Creem, a Jewish woman with a Jewish constituency, made it her personal agenda not only to make sure the Joint Committee on the Judiciary voted on this bill with an "ought not to pass" recommendation, but also to monitor any attempt to move such a bill in the future. According to people present, Senator Creem made it publicly clear that she wanted absolutely no part of the testimony, and kept her chair turned away for the duration of the proceedings. The head of the Joint Committee on the Judiciary was unable to suspend her personal bias long enough to listen to the testimony of concerned citizens.

This year, MGM Bill organizers were able to get enough signatures to put their bill on this year's November ballot in the city of San Francisco. Despite the unlikelihood of such a measure ever passing, it didn't take long for financial and religious interest groups to start a campaign to have the bill stricken from the ballot, before the debate even took place in November. Circumcision advocates were successful in getting the bill stricken from the November ballot, albeit in a rather farfetched manner. Using a pre-existing statute that was instated to prohibit local governments from establishing bans on the declawing of cats, circumcision advocates were successfully able to argue that "only the state could make laws regarding circumcision," and thus the judge struck the bill from the ballot. (The statute uses the term "healing arts professional," which can also refer to doctors that perform circumcisions.)

Here too, we see that circumcision interest groups wield the power of authorities in high places. In support of the bill, Doctors Opposing Circumcision (DOC) sent in documents that Superior Court Judge Loretta Giorgi refused to read. She ruled that California law makes regulating medical procedures a function of the state, not cities. However, her ruling bypasses the question of the circumcision of healthy, non-consenting infants as legit medical procedure that doctors can even be performing. She was also ignorant to the fact that the proposed law made an exemption for medically necessary procedures. The law would have not prohibited doctors from performing circumcisions, only ensured that the circumcisions they performed in healthy, non-consenting minors were medically legit.

It is worth noting that while the most vocal opponents to the circumcision bill in San Francisco were religious interest groups, they chose to fight it using legal and semantic technicalities in a pre-existing law concerning medical practice, in lieu of the arguments of "religious freedom" and "parental choice." Could it be that even religious advocates of circumcision recognize that the arguments of "religious freedom" and "parental choice" have lost their validity?

The Fight Goes State AND Federal
In direct response to the proposed bill in San Francisco, Jewish Congressman Brad Sherman has taken it upon himself to introduce the so-called "Religious and Parental Rights Defense Act of 2011" (AKA H. R. 2400) in the House of Representatives, which would prevent municipalities from passing bills like MGM Bill.

On his website, Sherman argues that "To infringe [on] the religious rights of so many Americans, San Francisco should have some compelling medical reason; however, the medical literature actually shows clear benefits of male circumcision."

Here too, we see a politician with religious interests turning to "medical benefits" in defense of the non-therapeutic circumcision of healthy, non-consenting minors; "religious rights" somehow seem insufficient enough to stand alone as an alibi. We also see an intent on twisting medical logic to fit his political needs; there needs to be a compelling medical reason FOR surgical procedures, not the other way around.

He says "According to a United Nation AIDS agency study, male circumcision offers a 60 percent reduction in HIV risk and the benefits are life-long," but conveniently fails to mention, or is oblivious to the reality concerning HIV and circumcision in his own country. (Despite a 80% circumcision rate, the United States has higher HIV/STD transmission rates than Europe, where circumcision is rare, even African HIV hotspots.)

Sherman continues “I agree with the American Academy of Pediatrics that parents should clearly have the right to freely decide whether circumcision is in the best interests of their male children... In fact, American parents have chosen circumcision for over 75 percent of male children.”

The American Academy of Pediatrics has made no such statement. The AAP does say in their latest position statement that they "recommend that the decision to circumcise is one best made by parents," but it also says "... [the] benefits are not sufficient... to recommend that all infant boys be circumcised." Additionally, according to the latest CDC reports, the rates of circumcision have fallen in America down to approximately 55%. Either Congressman Brad Sherman is out of touch with reality, or he is being willfully ignorant to the facts.

In direct lockstep with Brad Sherman, his former employer, California State Assemblyman Mike Gatto has introduced a similar bill in the state of California. I have already thoroughly analyzed this in a previous post.

Similar to Gatto's Law, the "Religious and Parental Rights Defense Act of 2011" defies all of medicine, by attempting to codify medical statements that no respected medical organization has ever dared to make. The exact wording as it appears in Section 2 is:

(1) Male circumcision carries significant medical benefits, including lower risk of sexually-transmitted diseases, certain kinds of infection, and overall improved hygiene.

But Congressman Sherman is a little bit bolder than Mike Gatto, by unabashedly including a clause that specifies that the bill protects a particular religious practice. It states:

(2) Male circumcision is an important part of many world religions, including Judaism and Islam, and observers have safely embraced its practice for generations.

So not only does the proposed law attempt to dictate medical validity, it clearly states that its purpose is to grant legislative immunity to members of the religions named for a particular form of genital cutting under the so-called name of "religious freedom."

The law seeks to limit states and local government by prohibiting them from restricting genital cutting, male genital cutting specifically. Section 3 reads:

No State or political subdivision of a State may adopt or continue in force a law, regulation, or order that prohibits or regulates the circumcision of males who have not attained the age of 18 years and whose parent or guardian has consented to the circumcision, unless such law, regulation, or order--

(1) applies to all such circumcisions performed in the State; and

(2) is limited to ensuring that all such circumcisions are performed in a hygienic manner.

It sounds like Congressman Sherman wants not only to dictate the medical validity of the practice of circumcision on healthy, non-consenting individuals, but also to make it so that anyone, not just trained doctors, could practice circumcision on a non-consenting person under the age of eighteen, so long as it is performed in a "hygienic" manner, and for no further reason other than that a parent requests it. I'm not sure I can quite picture a 17-year old boy being restrained to be circumcised by a blind man with Parkinson's using an X-acto knife, because his father wanted him circumcised, so long as it was done in a "hygienic" manner. It is absolutely horrific to think that a male person's rights over his own body do not begin until the age of 18, that a boy 17 and under can be circumcised at a parent's request, and he has absolutely no capacity to refuse.

This Anti-anti-circumcision bill was referred to the House Committee on Energy and Commerce for consideration.

The Problem With Circumcision "Protection" Laws
Perhaps the biggest problem with this legislation is that, like Mike Gatto's law in California, it enacts as statute value judgements about circumcision that a state legislature cannot and should not be making. How are the medical claims in this law confirmed? Are there any urologists, pediatrics or epidemiologists sitting in Congress? Will evidentiary hearings in order to substantiate the claims about circumcision be held? Will the public have the opportunity to be heard at these hearings? Will we know what STDs children are at risk of contracting, for example? Precisely what "kinds of infection" does circumcision prevent, and do these "kinds of infection" have alternative treatment? Will we know how exactly circumcision "improves hygiene," and why this "improvement" is needed? (Incidentally, in their last Circumcision Policy Statement, the AAP has specifically said that "there is little evidence to affirm the association between circumcision status and optimal penile hygiene.") Will we know what are the risks and complications of performing circumcision on healthy, non-consenting individuals, especially infants? Will the functions of the prepuce be outlined in full detail?

Unconstitutional
Sherman's law flies in the face of the constitution in more ways than one. The 1st Amendment states clearly:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

From the Findings in Section 2, we see clearly that Sherman wants to enact a law respecting the establishment of religion. The free exercise of religion includes the immunity from having a religion forced upon one's self, and this law would protect the forcing of a religion on a non-consenting individual in a physical and irreversible way. This law abridges the freedom of speech of the child, not to mention the right to his body, and the right for him to petition the Government for a redress of grievances should the child grow up to resent what was done to him. It abridges the freedom of speech of those wishing to protect him.

The second finding also claims that religious practitioners of infant circumcisions have "safely embraced its practice for generations." The law would be ignorant of the fact that mishaps happen to children being circumcised, even when they are circumcised in a "religious" setting. The last few years have seen law suits raised against both mohels and doctors who cut the glanses off the penises of Jewish and gentile children. In one particular incident, a New York rabbi gave herpes to three Jewish babies, one of whom died, by way of the ultra-orthodox practice of sucking on a child's wounded penis (AKA metzitzah b'peh), bringing the practice into question. Circumcision botches are so common that there are doctors that specialize in circumcision corrections.  Here again, Sherman seems to be oblivious, or willfully ignorant to the facts.


The 14th Amendment says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The U.S. Female Genital Mutilation Act already defies the 14th Amendment, as it affords protection from genital cutting to only one sex. It seems Sherman seeks to strengthen this sexist discrimination by making it illegal for states to prohibit the genital cutting of the unprotected sex. Furthermore, the institution of a law that protects "religious and parental rights" places the federal ban on female genital cutting on shaky ground, because for better or for worse, it too infringes on "religious and parental rights."

Religious and Parental Rights Have Limitations
The US Constitution does allow great latitude on religious freedom. However, traditionally that freedom only extends to the individual. For better or for worse, there are laws that place limits on what parents are allowed to do with their children, even when it comes to "religious freedom." The marriage of minors is illegal, for example, as is polygamy. Parents may not allow their children to hold snakes or drink poison. Laws in many states prohibit parents from denying needed healthcare to their children without religious exception. Parents may neither slash their children's heads on the holy day of Ashura, nor have their daughters circumcised in order to fulfill a religious requirement.

Parents most definitely have the right--even the duty--to make many decisions for their children. Some decisions might include passing on religious teachings and practices, but the law (usually) draws the line at slashing or removing body parts from their children for the sake of ritual. A person's right to freedom of any kind (usually) stops at the point where it infringes on the freedom of another. H. R. 2400 grants immunity to parents that overstep the bounds of religious liberty to violate the religious freedom of their children, and prohibits the state from stepping in.

What's also troubling about H. R. 2400 is that it appears to be trying to foster a parental right to cut the genitalia of a child. The words of the bill itself do not establish a parental right to circumcise a boy per se, but the title seems to imply that there is already such a right that must be defended. There is no such parental right to have elective surgery performed on a completely healthy child. There is a long line of US Supreme Court cases that place limits on what parents can inflict upon their children. One such case is Prince v. Massachusetts. The Court stated, "Parental authority is not absolute and can be permissibly restricted if doing so is in the interests of a child's welfare." The following assertions can be found in the majority opinion written for the above case:

"...neither the rights of religion nor the rights of parenthood are beyond limitation…The right to practice religion freely does not include the right to expose the community or the child to communicable disease or the latter to ill-health or death...

Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves."

Conclusion
By all standards, this law should have little hope of passing constitutional muster. The bill codifies false medical statements and defies the constitution by granting preference and immunity to members of particular religious groups that practice male (but not female) genital cutting. It jeopardizes the individual human rights, religious freedom and bodily integrity of healthy, non-consenting male minors under the age of 18, and allows parents to absolve anyone cutting the genitals of said individuals.

Furthermore, it jeopardizes the individual human rights, religious freedom and bodily integrity of healthy, non-consenting female minors under the age of 18, because the existence of a statute that is supposed to protect "religious and parental rights" gives religious practitioners of female genital cutting legal grounds to challenge the federal ban on all female genital cutting. Religious groups that practice the genital cutting of girls will seek to overturn the federal ban on all female cutting because it infringes on their "religious and parental freedoms." Congressman Sherman is going to open up a can of worms with this law.

As of now, it looks like the circumcision protection law in California will more than likely be instated (see update below). Given the fact that the circumcision of healthy, non-consenting infants is still widely practiced in this country, by Jews and gentiles alike, Congressman Sherman may find support to get his bill protecting his religious practice yet. It may seem as if intactivists should have never thought to legally challenge the status quo, but I think that it is quite the contrary.

The instatement of these laws may appear to be an obstruction of the intactivist cause, but by taking the legal circumcision battle to the State and Federal levels, Sherman and Gatto have inadvertently helped the intactivist movement. It's easier to fight codified sexism and discrimination than it is to fight de facto sexism and discrimination. The enactment of these laws brings the circumcision of healthy, non-consenting minors from a "non-issue" to the forefront. The issue is "official," on both the state and federal level, which means it can no longer be ignored. Codifying something into law means that eventually it can be repealed. Even if these laws pass, we shouldn't lose heart. Now that the issue of circumcision is in the limelight, we should seize the opportunity to educate others about it

Take Action
Are you opposed to the "Religious and Parental Rights Defense Act" (AKA H.R. 2400)? Would you like to take action to stop it? I strongly suggest you use POPVOX to contact your Representative. It is also a good idea to contact other Representatives, particularly those on the House Committee on Energy and Commerce, which is considering the Bill. When you write, be sure to include a clause which specifically says "I oppose H. R. 2400."

California Update
Incidentally, the last time I wrote about the California bill, Gatto's measure had not only gone before the Senate Judiciary Committee, which unanimously voted 5-0 in favor of passing it under perfunctory if not dubious legal procedure, but it had also gone before the full State Senate, where it was unanimously approved 37-0. The bill has been approved by the Legislature, amendments made to the bill have been passed by the Assembly and has headed to Governor Brown, which he will most likely sign in order to please his Jewish constituents. Being presented as an "urgency bill necessary for the immediate preservation of the public peace, health, or safety," it will take effect immediately as soon as it is signed. If it passes, California will be the first state to enact a law that defies all of medicine.

It may prove futile, but it is still possible to write to Governor Brown to ask him to veto this law.

Visit the following links for another set of analyses regarding the impending circumcision protection laws:

Califronia Law

Federal Law