by David Balashinsky
Female genital cutting (FGC - also known as female genital mutilation, or FGM) has been illegal in The Gambia since 2015. This past March, however, in response to the convictions of three women for violating The Gambia's anti-FGM law, Member of Parliament, Almaneh Gibba, introduced legislation that would repeal this West African nation's ban on the practice. If the bill passes, it would be the first instance of an FGC ban being reversed. Understandably, many human rights activists and organizations - in The Gambia and around the world - have been both outraged and alarmed by this development and have publicly urged the government of the The Gambia not to repeal its law outlawing female genital cutting.
Recently, the Berlin-based TERRE DES FEMMES, an organization that focuses on girls' and women's rights, also expressed its opposition to repealing the FGC ban in an Open Letter addressed to the president and National Assembly of The Gambia. When TERRE DES FEMMES (TDF) reached out to the Genital Autonomy Legal Defense & Education Fund (GALDEF) requesting that we add our name in support of this initiative, we agreed to do so. (Intact Denmark and 15Sqaure are also among the more than fifty human-rights organizations that have signed the letter.)
This was not a difficult decision for GALDEF. As we commented in this space last year on the occasion of the International Day of Zero Tolerance for Female Genital Mutilation (an annual observance that was established by the United Nations General Assembly in 2012),
GALDEF supports the . . . goal of ending female genital cutting (FGC) worldwide. We agree that FGC is an inherently harmful practice that violates the fundamental right to bodily integrity of those who are subjected to it. As our Values Statement makes clear, GALDEF stands in full “solidarity with female and intersex victims of genital cutting. . . .” Likewise, the United Nations’ goal of eradicating FGC is consistent with GALDEF‘s Vision: “To create a world where the right of everyone to bodily integrity and the freedom to choose what's done to their genitals is legally protected.”
GALDEF does not see any moral ambiguity in the matter of forced genital cutting. We oppose all forms of non-consensual genital cutting regardless of the sex of the victim. The right to genital integrity and the right to genital autonomy are among the most basic and important rights that people possess. However, because we consider these rights universal - belonging, that is, to every human being, regardless of sex - we view sex-exclusive genital-cutting bans as morally problematic. To be clear, GALDEF does not oppose FGC bans. But we are opposed to FGC-only bans. This can put us in a morally ambiguous position when the question is whether to endorse a sex-specific genital-cutting ban or, as in the present case, to lend our name in support of opposition to the repeal of one.
The obvious and overriding concern is whether or not to support what can only be described as a half measure. When an organization endorses a female-only genital-cutting ban, that organization is implicitly - or, at the very least, may appear to be - endorsing the genital cutting of everyone else. The question, then, turns on the inherent tension that often exists between the good and the perfect. It is further complicated by questions of cultural context, political strategy and the principle of moral consistency. All of these factors were uppermost in our thoughts as GALDEF weighed TDF's request to sign its letter.
The purpose of this post is to explain the reasoning behind GALDEF's decision. Any opportunity to contribute something to the conversation on how to eradicate the genital cutting of all children is welcome, of course. But, more importantly, as a 501(c)3 tax-exempt organization, GALDEF depends on the financial support of its donors. Because they (and others, too) have a right to expect transparency of GALDEF, an airing of the philosophical and strategic considerations that informed our deliberations on TDF's request seems warranted. All the more so as GALDEF is currently soliciting support for an equal protection lawsuit here in the United States that we hope will result in the invalidation, on constitutional grounds, of a statewide ban on genital cutting that protects girls but not boys or intersex children. This means that, by signing TDF's letter, we are actively opposing the repeal of a sex-specific (female-only) genital-cutting ban in The Gambia while supporting a future effort to have a court strike down a similar law here. How, some may wonder, do we reconcile these two seemingly contradictory strategies?
The first and most important answer to that arises from the fact that GALDEF and the legislators in The Gambia who support re-legalizing FGC are motivated by and working toward fundamentally different objectives. The goal of an equal-protection lawsuit here in the United States is not to deprive girls of legal protection against genital cutting but simply to obtain a judicial decision instructing a state legislature that, in order not to run afoul of that state's constitutional mandate of equal protection on the basis of sex, it must rewrite its anti-genital-cutting statute using sex-neutral language so that the law protects every child - not just those born with vulvas. The ultimate goal of this strategy is not to "lower the ceiling" for every child so that none is protected from genital cutting but, rather, to "raise the floor" so that every child is protected against genital cutting. The goal of those behind the repeal of the FGC ban in The Gambia is diametrically opposite to this. Thus, while these two strategies may, at face value, seem similar, the objectives behind them could not be more dissimilar.
Perhaps equally critical to an understanding of how and why these initiatives differ fundamentally from one another is an appreciation of the radically different cultural contexts of The Gambia and the United States, especially with respect to genital cutting. In The Gambia, FGC is a "deeply rooted cultural practice" with as many as 73% of girls and women between the ages of 15 and 49 having been subjected to it. As explained in a comprehensive government-issued report (National Policy for the Elimination of Female Genital Mutilation in The Gambia 2022-2026),
Communities perform FGM for various reasons. The retention and preservation of social heritage, family pride, prestige, community acceptance, avoidance of stigma, marriageability, and inclusion are among the main reasons why FGM is still practiced and perpetuated. Rejecting FGM has cultural, social, economic, and political consequences including stigmatization and discrimination. FGM is also considered a cultural identifier among the practicing communities distinguishing their daughters from those of communities who do not circumcise their girls and women.
The National Policy report emphasizes that,
FGM is a social norm that is deeply entrenched in the cultural, and historical beliefs of certain ethnic groups in The Gambia and has religious connotations. In many practicing communities, parents practice FGM on their daughters because they believe that it is a religious obligation to do so. Consequently, parents and traditional and religious leaders continue to promote, perpetuate, and defend the practice. Statistically, in The Gambia, only about one-third of women (34%) and men (31%) believe that FGM is not a religious requirement. Less than half of women (46%) and men (42%) believe that female circumcision should not . . . continue [citation omitted].
This report further notes that,
Another reason why [FGC] is practiced is that it is considered a rite of passage into womanhood. There is a general belief amongst practicing communities that FGM prepares girls for womanhood, for their life ahead as wives, mothers and caregivers.
In contrast to The Gambia, FGC is neither a deeply embedded nor a widespread cultural or religious practice in the United States. The same cultural forces that make FGC prevalent in The Gambia are what make FGC rare here. A statutory ban, in other words, is not all that is standing between girls' genital integrity and their being subjected to routine genital cutting in the U.S.
That is not to say that the U.S. does not have its own shameful history of female genital cutting. Clitoridectomy was regarded as an appropriate "treatment" for masturbation - a medicalized form of genital cutting that arose in parallel with male genital cutting (MGC) for the same purpose - and was imposed on girls in the U.S. during much of the nineteenth and twentieth centuries. (Intersex genital cutting, of course, continues to this day, although it is finally falling out of favor among the medical establishment.) Even worse (if only because one might hope to expect better of contemporary society), there now appears to be a resurgence of FGC in the United States. One widely-quoted study estimated that, by 2012, a half million girls were at risk for FGC - a threefold increase over 1990 estimates. As alarming as these statistics are, however, they also represent the exception that proves the rule. As the authors of this study concluded, the increase in risk of FGC between 1990 and 2012 "was wholly a result of [the] rapid growth in the number of immigrants from FGM/C practicing countries living in the United States. . . ." There is no reason to believe, therefore, that a temporary invalidation on equal-protection grounds of an FGC ban would result in open season for FGC in the U.S. or that it would increase the risk to girls of being subjected to FGC beyond girls who already are at risk, ban or no ban. Again, that is in no way to suggest that girls should not be legally protected against genital cutting. Of course they should - as all children should.
It is also important to bear in mind that, as high as the prevalence of FGC is in The Gambia, the prevalence of MGC in that nation is even higher: 99.2%, according to the 2018 Multiple Indicator Cluster Survey for The Gambia. As this report explains,
Circumcision in The Gambia is both [a] cultural and religious practice and is observed by all ethnic groups. In the past, boys were circumcised very late in their life and the practice is seen as a transformation [from] boyhood to manhood. Furthermore, it was done by traditional circumcisers in overcrowded ritual sites under unhygienic conditions increasing the risk of infection among the children. Recently trained health professional's [sic] involvement in male circumcision is gaining momentum, however traditional circumcisers still continue to practice in some communities.
The near universal prevalence of genital cutting for religious and cultural reasons across the entire population - male and female - of The Gambia represents another crucial distinction between the proposed legislation repealing the FGC ban there and an equal-protection lawsuit here, and this also explains why GALDEF can oppose the former while supporting the latter. Unlike the ultimate goal of an equal-protection lawsuit in the U.S. - which, again, is to codify legal protection against genital cutting for all children - the goal of the pending legislation in The Gambia is effectively to deny legal protection against genital cutting for all children. If The Gambia repeals its anti-FGC law, it won't be because legislators there want to protect boys and intersex children from genital cutting. Far from it. With near-universal penile circumcision in The Gambia, an MGC ban isn't even on the table. The point of the legislation is simply to protect those who practice FGG from prosecution. That necessarily entails ending legal protection from genital cutting for girls. That's not a step forward for boys; it's a step backward for girls. And, just as repealing the anti-FGM law in The Gambia will do nothing to protect boys there, preserving it would do nothing to harm them. If anything, a repeal of The Gambia's anti-FGC ban will indirectly harm boys by reinforcing the legality and social acceptability of genital cutting in principle. This will only make it harder to expand protection from genital cutting in the future to boys and intersex children in The Gambia. It is because of these different cultural contexts, then, that opposing the repeal of an FGC ban in The Gambia while supporting the overturning of a girls-only genital-cutting ban here in the U.S. is logically, strategically, and morally consistent.
Still another compelling reason to sign on to TDF's letter is simply because they asked us to. GALDEF recognizes the importance - both on principle and strategically - of making common cause with other organizations that are pursuing similar goals. Our view is "that all genital autonomy movements stand on the same philosophical foundation." That means not merely opposing FGC in the abstract - which we do - but supporting organizations - when we can - that are actively working to end FGC.
Moreover, TDF is not just any girls' and women's rights organization. TDF has long been a vocal supporter of genital autonomy for boys. In fact, it might be the only women's rights organization that has had the courage, the moral integrity and the philosophical consistency to publicly articulate its support for the right of all children, regardless of sex, not to be subjected to medically-unnecessary genital cutting. TDF was a supporter of the Worldwide Day of Genital Autonomy even before there was a Worldwide Day of Genital Autonomy (WWDOGA). Not long after a district court in Cologne, Germany ruled (on May 7th, 2012) that the circumcision to which a four-year-old had been subjected amounted to an "illegal bodily harm" that violated his right to "physical integrity" (a milestone in the ongoing struggle for human rights that has been commemorated annually ever since as the WWDOGA), Irmingard Schewe-Gerigk, TDF's chairwoman at the time, was interviewed by Choices (an online magazine) and had this to say about penile circumcision and the Cologne ruling:
We welcomed the fact that the Cologne Regional Court made it clear that the physical integrity of children must not be violated using religious arguments. When balancing the interests of two constitutionally protected legal interests, it made it clear: the right to the undisturbed practice of religion and the parental right of parents do not take precedence over the child's right to [bodily] integrity and self-determination. Furthermore, by ratifying the UN Convention on the Rights of the Child, Germany has committed itself to abolishing customs that are harmful to children. The fact that this irreversible procedure cannot be in the best interests of the child is clearly demonstrated. . . . [Original in German; this translation via Google Translate.]
To the extent that penile circumcision is comparable to some forms of FGC, Schewe-Gerigk notes that,
there are definitely parallels. In some regions, only the clitoral [hood] or the inner labia are removed. That's comparable. I recently looked at circumcision because I, too, imagined it to be more harmless. After that I can only say: Anyone who trivializes this doesn't know what's happening or doesn't want to know. My concern is that similar procedures that are prohibited for girls will be permitted for boys. I fight for equal rights for boys and girls. [Original in German; this translation via Google Translate.]
In 2016, the fourth anniversary of the Cologne ruling, Ida Nabaterrega, TDF's former FGM Policy Specialist, issued the following statement in support of that year's WWDOGA commemoration:
TERRE DES FEMMES, as a human rights organization, is fundamentally concerned with the physical integrity of children as a human right that applies equally to all children, regardless of their origin or religion and what gender they are. Irreversible interventions in the [bodily] integrity of children - with the exception of medically necessary treatments - must not be justified by religion or tradition - not even between girls, boys and intersex children. [Original in German; this translation via Google Translate.]
TDF's longstanding public opposition to MGC was not solicited by any anti-MGC organization. Rather, it was an exercise on TDF's part in principled advocacy for an equal right to genital autonomy for all children regardless of sex. Notwithstanding the fact that GALDEF continues to entertain serious and substantive objections to The Gambia's anti-FGM statute as written, to have rebuffed TDF's request for support in its current anti-FGM initiative would have been a betrayal not just of a longtime and esteemed ally in the cause of universal genital autonomy but, under the present circumstances, of our own values which, as noted above, include "solidarity with female and intersex victims of genital cutting."
None of this, however, alters our view that The Gambia's current anti-FGM law has major flaws - first and foremost, that it discriminates against boys by failing to include them in its proscription of genital cutting. Additionally, the law bans not only forced genital cutting of girls but even consensual genital cutting that may be sought by adult women. In denying women the right to alter their own bodies in conformity with their cultural values and religious beliefs, this law violates their right to bodily autonomy. In that respect, this law is at odds with GALDEF's core Vision which, to repeat, is "To create a world in which the right of everyone to bodily integrity and the freedom to choose what's done to their genitals is legally protected."
This brings us back to the most basic and important question concerning the ethics of supporting a statute that, by explicitly protecting only one class of persons, denies protection to everyone else. Under what circumstances is it appropriate to support a measure that is intended to advance a basic human right for some but not others? Consider, as an analogy, the debate over the 15th amendment to the U.S. constitution that prohibited denying someone the right to vote "on account of race, color, or previous condition of servitude" but not on account of sex. Faced with a gross injustice to two broad classes of persons - Black men and all women - but presented with an opportunity to rectify that injustice for only one of these classes, what was the more ethical course of action: to hold out for eventual universal suffrage at the cost of near-term suffrage for Black men? Or to do what one could, given the political and cultural realities of nineteenth-century America, to gain voting rights for Black men and seem, thereby, to implicitly support the continued denial of that right to women? (This debate actually resulted in a rift in the women's suffrage movement at the time, although it was not shaped exclusively by such noble considerations as utilitarianism, strategy, and idealism but also by less honorable beliefs about who was more "deserving of the vote.")
Other analogies might be found in the conundrum of "harm reduction." Harm-reduction strategies are practical approaches that are intended to mitigate rather than eliminate inherently harmful practices. Yet the very thing that may make harm reduction effective - being nonjudgmental - strikes critics of this approach as constituting implicit approval of the underlying practice. Thus, for example, controversy inevitably accompanies proposals to legalize Supervised Injection Facilities (also known as Safe Injection Sites): locations where people who inject drugs can do so under the supervision of healthcare professionals. If people are going to inject dangerous drugs, isn't it preferable that they don't die from doing it? Or is it rather the case that the mere existence of such facilities will "normalize" IV drug use and result in a higher incidence of substance use (and other social ills) with even more fatalities in the long run?
Closer to home, rather than a blanket ban, should some limited forms of FGC (see, in particular, pp. 506-510), performed under appropriately sterile conditions, be permitted in order not to drive the practice "underground"? Covert and unregulated, FGC would inevitably result in even greater harm to the victims. But wouldn't this strategy merely "enable" and perpetuate the practice?
Then there is the approach that seeks to limit overall harm across a population rather than the degree of harm to any one individual. Such an approach might incorporate a prohibition of medically unnecessary penile circumcision but with a religious exception. In the United States alone, this could spare over one million boys every year the trauma and irreversible effects of genital cutting while side-stepping the objection that an MGC ban would violate the free exercise of religion and, therefore, the first amendment. But don't children who are born into families that practice genital cutting have the same fundamental human rights - and the same constitutional rights - as every other child? And wouldn't a religious exception have to apply equally to families who sincerely believe FGC to be a religious requirement?
Finally, what about a genital-cutting ban that protects only girls? Aren't boys and intersex children born with the same fundamental human rights?
Sometimes, when working toward a particular goal, the quandary consists in there being too many variables to know which course of action is most likely to bring about the desired result. There are other times when social and political realities simply require us to settle for incremental changes rather than broad, fundamental change all at once. But there are also times when it is not an expected or even a hoped-for outcome that decides us on what to do but our principles, even though the result is likely to be less than ideal. With an unprecedented rescinding of an FGC ban looming over the girls of The Gambia and over the broad social movement to end all forms of genital cutting, we believe that this is one of those times. Whatever The Gambia legislature chooses to do, GALDEF chooses to stand on the right side of history. Genital cutting of all children will come to an end. It's not a question of "if" but of "when" and of "how." Faced with an actual choice rather than a purely theoretical one - the choice between remaining silent or adding our voice to the international chorus urging The Gambia not to repeal its FGC ban - GALDEF can come to only one set of reciprocal conclusions. For The Gambia, repealing the FGC ban is the wrong thing to do. For GALDEF, opposing that repeal is the right thing to do.
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