by David Balashinsky
Nine years ago, supporters of a proposed, citizen-initiated city ordinance presented more than 12,000 signatures to the Department of Elections in San Francisco. The ballot initiative that they hoped to place before the voters sought to accomplish one thing and one thing only: a ban on the forced circumcision of male minors when not medically necessary. Shortly thereafter, attorneys from the ACLU of Northern California filed an amicus curiae brief with the Superior Court of California in San Francisco "urging the court to issue a writ of mandate restraining San Francisco's Director of Elections from placing [an] initiative criminalizing circumcision on San Francisco's November 8, 2011 ballot."
To be clear, the proposed ballot initiative did not aim at "criminalizing circumcision." It specifically did not include a prohibition against penile circumcision when medically necessary. As the language of the ballot initiative stated, an exception to the (proposed) ban would exist in those cases in which circumcision is deemed "necessary to the physical health of the person on whom it is performed because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available."
Nor did the petitioners seek a blanket prohibition of circumcision. Penile circumcision practiced for religious reasons and cultural reasons (such as social conformity and socially-constructed "ideals" concerning the appearance of the human penis) all would continue to be perfectly legal. Under the provisions of the ballot initiative, there would be nothing to prevent an adult male from choosing circumcision for himself for any reason he might have. And that, of course, is as it should be: it's his body and it should be his choice. The initiative simply sought to insure that any individual who undergoes circumcision has an opportunity to exercise informed consent and, more importantly, that he has an opportunity to make a personal choice about whether or not to have a major portion of erotogenic tissue permanently removed from his penis. The most appropriate and effective way to accomplish this goal is to restrict the availability of this surgery to adults. While 18 may seem an arbitrary age, the idea behind it is that, until an individual is mature enough to fully grasp the ramifications of his choice, society has an obligation to prevent him from making the wrong one. This is particularly important in the case of an irreversible genital surgery.
The other objective of the age restriction was to protect minors from undue influence or coercion by adults. Whether we are speaking of girls, boys or intersex children, and whether we are speaking of female genital cutting (FGC), male genital cutting (MGC) or the binary, either-or sexual-assignment surgery to which intersex children frequently are subjected (IGC), medically unnecessary genital surgery (as opposed to gender-affirming treatment and surgery, which I am emphatically not including in this discussion) is something that no infant and few children ever ask for and to which no infant and few children ever meaningfully consent. Rather, medically unnecessary genital surgery is something that adults impose on their children's bodies. Given that minors can obtain cosmetic surgery with parental consent, there probably is no way to ascertain that a minor's choice to undergo genital surgery is, in fact, his choice. The most effective way to safeguard the fundamental rights of the child, therefore, is by taking medically unnecessary genital surgery off the (operating) table altogether.
For these reasons, then, the language of the proposed ballot initiative established 18 as the minimum age at which an individual could undergo medically unnecessary (non-therapeutic) circumcision. To repeat, the rationales behind this were to insure that an individual's choice to undergo circumcision is, in fact, his choice and that his choice be an informed one.
To this long-time supporter of the ACLU, the objectives and reasoning behind this ballot initiative seem not just equitable but incontrovertibly equitable. It is self-evident that subjecting an infant or child to a surgery that is medically unnecessary, irreversible, and that removes an integral part of his penis without his consent violates his fundamental human rights. It violates his right to bodily integrity (the right to keep one's body whole, unaltered and unscarred) and his right of bodily autonomy (the exclusive right of an individual to make decisions about his own body). That is why it is baffling that ACLU NorCal not only did not support this ballot initiative but went out of its way to oppose it. ACLU NorCal, after all, is an an affiliate of the national ACLU - an organization that, in the words on ACLU NorCal's website, "was founded . . . to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." In its own Mission Statement, ACLU NorCal describes itself as "an enduring guardian of justice, fairness, equality and freedom. . . ."
These principles - justice, fairness, equality and freedom - are not adjuncts to ACLU NorCal's mission but lie at its very heart. They guide the organization in every battle that it wages and in every cause that it champions. Their centrality to ACLU NorCal's mission should have been reason enough for it to support this ballot initiative, to say nothing of not standing in its way. This is what makes ACLU NorCal's position in this case so stunning. It is not only diametrically opposite its own professed principles but diametrically opposite the positions that the ACLU has taken in virtually every other case in which it has defended bodily autonomy and fundamental human rights.
On abortion rights, for example, ACLU NorCal proclaims, "The ACLU fights for Californians' bodily autonomy. . . ." An action-alert email that I received from the ACLU in 2018 (as I said, I am a long-time supporter) began with the words, "The right to make decisions about our own bodies and lives is in jeopardy." Yet the ballot initiative that ACLU NorCal fought against in 2011 merely sought to codify this very right - the right of individuals to make decisions about their own bodies. It would simply have guaranteed that right to minors with penises whose fundamental right not to be subjected to medically unnecessary genital surgery is, to this day, routinely violated.
When the issue was same-sex marriage, the ACLU went to court to compel Kim Davis, the county clerk from Rowan County, Kentucky, to issue marriage licenses to same-sex couples which, "because of her personal, religious opposition to marriage for same-sex couples," she had refused to do. Despite its long history as a stalwart defender of the first amendment, the ACLU recognized in this case that the freedom to practice one's religion ends where other persons' rights begin. In other words, each person's fundamental right to act in accordance with her beliefs is circumscribed by every other person's even greater and even more fundamental right not to be harmed. Contra- vening this important principle, and notwithstanding the fact that any medically unnecessary removal of a body part without consent is a harm in and of itself, the freedom to harm others as an expression of one's own religious belief is precisely what ACLU NorCal defended when it opposed the San Francisco ballot initiative. As then managing attorney of ACLU Northern California Jory Steele explained in a press release after the citizen initiative was struck from the ballot, "This initiative would have undermined the right to religious liberty that we cherish in a pluralistic society."
It seems paradoxical that an ACLU NorCal attorney should invoke "religious liberty," the rallying cry of right-wing religious extremists. After all, "religious liberty" has been claimed not just in defense of a "right" to deny same-sex couples their right to marry but as a justification for denying women access to reproductive health care and abortion, for denying equal accommodations and services to LGBTQ persons, and even for denying basic medical care to transgender persons. Yet in each of these other cases, the ACLU recognized - as ACLU NorCal itself posted on its Facebook page (on November 6, 2019) - that "Freedom of religion is a fundamental right, but it cannot be used to harm others." Unless, apparently, those others are persons with penises who are under the age of 18.
Perhaps nowhere is ACLU NorCal's inconsistency more glaring than in the double standard that it applies to MGC, on the one hand, and to IGC on the other. To fully grasp the magnitude of this particular contradiction, consider the words of Elizabeth Gill, Senior Staff Attorney, which appear on ACLU NorCal's website under the heading "We Must Stop Forcing Conformity on Intersex Bodies":
Nine years ago, supporters of a proposed, citizen-initiated city ordinance presented more than 12,000 signatures to the Department of Elections in San Francisco. The ballot initiative that they hoped to place before the voters sought to accomplish one thing and one thing only: a ban on the forced circumcision of male minors when not medically necessary. Shortly thereafter, attorneys from the ACLU of Northern California filed an amicus curiae brief with the Superior Court of California in San Francisco "urging the court to issue a writ of mandate restraining San Francisco's Director of Elections from placing [an] initiative criminalizing circumcision on San Francisco's November 8, 2011 ballot."
To be clear, the proposed ballot initiative did not aim at "criminalizing circumcision." It specifically did not include a prohibition against penile circumcision when medically necessary. As the language of the ballot initiative stated, an exception to the (proposed) ban would exist in those cases in which circumcision is deemed "necessary to the physical health of the person on whom it is performed because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available."
Nor did the petitioners seek a blanket prohibition of circumcision. Penile circumcision practiced for religious reasons and cultural reasons (such as social conformity and socially-constructed "ideals" concerning the appearance of the human penis) all would continue to be perfectly legal. Under the provisions of the ballot initiative, there would be nothing to prevent an adult male from choosing circumcision for himself for any reason he might have. And that, of course, is as it should be: it's his body and it should be his choice. The initiative simply sought to insure that any individual who undergoes circumcision has an opportunity to exercise informed consent and, more importantly, that he has an opportunity to make a personal choice about whether or not to have a major portion of erotogenic tissue permanently removed from his penis. The most appropriate and effective way to accomplish this goal is to restrict the availability of this surgery to adults. While 18 may seem an arbitrary age, the idea behind it is that, until an individual is mature enough to fully grasp the ramifications of his choice, society has an obligation to prevent him from making the wrong one. This is particularly important in the case of an irreversible genital surgery.
The other objective of the age restriction was to protect minors from undue influence or coercion by adults. Whether we are speaking of girls, boys or intersex children, and whether we are speaking of female genital cutting (FGC), male genital cutting (MGC) or the binary, either-or sexual-assignment surgery to which intersex children frequently are subjected (IGC), medically unnecessary genital surgery (as opposed to gender-affirming treatment and surgery, which I am emphatically not including in this discussion) is something that no infant and few children ever ask for and to which no infant and few children ever meaningfully consent. Rather, medically unnecessary genital surgery is something that adults impose on their children's bodies. Given that minors can obtain cosmetic surgery with parental consent, there probably is no way to ascertain that a minor's choice to undergo genital surgery is, in fact, his choice. The most effective way to safeguard the fundamental rights of the child, therefore, is by taking medically unnecessary genital surgery off the (operating) table altogether.
For these reasons, then, the language of the proposed ballot initiative established 18 as the minimum age at which an individual could undergo medically unnecessary (non-therapeutic) circumcision. To repeat, the rationales behind this were to insure that an individual's choice to undergo circumcision is, in fact, his choice and that his choice be an informed one.
To this long-time supporter of the ACLU, the objectives and reasoning behind this ballot initiative seem not just equitable but incontrovertibly equitable. It is self-evident that subjecting an infant or child to a surgery that is medically unnecessary, irreversible, and that removes an integral part of his penis without his consent violates his fundamental human rights. It violates his right to bodily integrity (the right to keep one's body whole, unaltered and unscarred) and his right of bodily autonomy (the exclusive right of an individual to make decisions about his own body). That is why it is baffling that ACLU NorCal not only did not support this ballot initiative but went out of its way to oppose it. ACLU NorCal, after all, is an an affiliate of the national ACLU - an organization that, in the words on ACLU NorCal's website, "was founded . . . to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." In its own Mission Statement, ACLU NorCal describes itself as "an enduring guardian of justice, fairness, equality and freedom. . . ."
These principles - justice, fairness, equality and freedom - are not adjuncts to ACLU NorCal's mission but lie at its very heart. They guide the organization in every battle that it wages and in every cause that it champions. Their centrality to ACLU NorCal's mission should have been reason enough for it to support this ballot initiative, to say nothing of not standing in its way. This is what makes ACLU NorCal's position in this case so stunning. It is not only diametrically opposite its own professed principles but diametrically opposite the positions that the ACLU has taken in virtually every other case in which it has defended bodily autonomy and fundamental human rights.
On abortion rights, for example, ACLU NorCal proclaims, "The ACLU fights for Californians' bodily autonomy. . . ." An action-alert email that I received from the ACLU in 2018 (as I said, I am a long-time supporter) began with the words, "The right to make decisions about our own bodies and lives is in jeopardy." Yet the ballot initiative that ACLU NorCal fought against in 2011 merely sought to codify this very right - the right of individuals to make decisions about their own bodies. It would simply have guaranteed that right to minors with penises whose fundamental right not to be subjected to medically unnecessary genital surgery is, to this day, routinely violated.
When the issue was same-sex marriage, the ACLU went to court to compel Kim Davis, the county clerk from Rowan County, Kentucky, to issue marriage licenses to same-sex couples which, "because of her personal, religious opposition to marriage for same-sex couples," she had refused to do. Despite its long history as a stalwart defender of the first amendment, the ACLU recognized in this case that the freedom to practice one's religion ends where other persons' rights begin. In other words, each person's fundamental right to act in accordance with her beliefs is circumscribed by every other person's even greater and even more fundamental right not to be harmed. Contra- vening this important principle, and notwithstanding the fact that any medically unnecessary removal of a body part without consent is a harm in and of itself, the freedom to harm others as an expression of one's own religious belief is precisely what ACLU NorCal defended when it opposed the San Francisco ballot initiative. As then managing attorney of ACLU Northern California Jory Steele explained in a press release after the citizen initiative was struck from the ballot, "This initiative would have undermined the right to religious liberty that we cherish in a pluralistic society."
It seems paradoxical that an ACLU NorCal attorney should invoke "religious liberty," the rallying cry of right-wing religious extremists. After all, "religious liberty" has been claimed not just in defense of a "right" to deny same-sex couples their right to marry but as a justification for denying women access to reproductive health care and abortion, for denying equal accommodations and services to LGBTQ persons, and even for denying basic medical care to transgender persons. Yet in each of these other cases, the ACLU recognized - as ACLU NorCal itself posted on its Facebook page (on November 6, 2019) - that "Freedom of religion is a fundamental right, but it cannot be used to harm others." Unless, apparently, those others are persons with penises who are under the age of 18.
Perhaps nowhere is ACLU NorCal's inconsistency more glaring than in the double standard that it applies to MGC, on the one hand, and to IGC on the other. To fully grasp the magnitude of this particular contradiction, consider the words of Elizabeth Gill, Senior Staff Attorney, which appear on ACLU NorCal's website under the heading "We Must Stop Forcing Conformity on Intersex Bodies":
A core aspect of human autonomy and dignity is to be able to make decisions about our own bodies. But each year, doctors around the country continue to perform medically unnecessary, harmful surgeries on intersex infants and children, just to “normalize” their bodies. What this means is that doctors are forcing infants and young children to undergo medically unnecessary genital surgery simply to force their natural bodies to conform to traditional societal—and binary—views of “male” and “female” bod[i]es.
These irreversible surgeries are increasingly considered a violation of human rights and can lead to a lifetime of trauma, physical pain, loss of genital sensitivity, incontinence, scarring, sterilization, or incorrect gender assignment. Yet they are often justified solely by the adult fear of the child being stigmatized by a perceived nonconforming body.
Instead of forcing conformity, we should celebrate our differences. October 26th marks Intersex Awareness Day. On this day—and every other day of the year—the ACLU stands with intersex people and allies throughout the country and world to protect and advance the fundamental human rights and civil liberties of intersex people.Virtually everything that Gill asserts about forced sexual-assignment surgery is equally true of forced penile circumcision. (Try re-reading Gill's comments while mentally substituting "intersex" with "male.") It is medically unnecessary and it is performed primarily for reasons of social conformity ("so he will look like his father") and "normalization" ("so he won't be made fun of in the locker room"). Just as forced sexual-assignment surgery is "increasingly considered a violation of human rights," so, too, is forced, non-therapeutic penile circumcision. Just as forced sexual-assignment surgery can entail numerous complications and adverse sequelae, including loss of sensation, so, too, does forced, non-therapeutic penile circumcision. (The many problems associated with neonatal circumcision are discussed here.) It can even result in "incorrect gender assignment."
I also happen to agree with everything in Gill's statement as it pertains to the rights of intersex individuals. I just wonder why it hasn't yet occurred to Gill and to ACLU NorCal to advocate for "human autonomy and dignity" for all humans, including those born with penises. If they did, I could imagine their issuing a position statement that might go something like this:
On this day - and every other day of the year - ACLU NorCal stands with girls, boys, women, men and intersex people throughout the country and throughout the world to protect and advance the fundamental human rights and civil liberties of all human beings.
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