Infant Male Circumcision: Examining the Human Rights & Constitutional Issues

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Infant Male Circumcision:
Examining the Human Rights and
Constitutional Issues

J. Steven Svoboda, Esq.

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Cultural blindness facilitates the perpetuation of many barbaric
and/or egregiously discriminatory practices and conditions.

1. INTRODUCTION

Reasons for profound concern with infant male circumcision are summarized. Human rights agreements - applicable either through ratification or through customary law - forbid circumcision based on such important principles as the rights of the child, the right to freedom of religion, the right to the highest attainable standard of health, and the right to protection against torture. The many laws against female genital mutilation, and the discriminatory failure to outlaw and vilify male genital mutilation, violate equal protection under both international human rights law and American legal doctrines. Cultural blindness facilitates the perpetuation of many barbaric and/or egregiously discriminatory practices and conditions. Now that we understand the medical, psychological, legal, and human rights problems caused by circumcision better than at any time in the past, we are in a position to criminalize it and protect the children.

1.1. Customary Law and Human Rights Agreements

Although our recent ratification of certain human rights documents has ameliorated our position somewhat, the United States has long been regarded as a sort of outlaw in the human rights community. Among other considerations, this reputation may be attributed to our tardiness and/or failure to sign and/or ratify a number of documents which have been widely accepted around the world, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the American Convention on Human Rights and until relatively recently, the International Covenant on Civil and Political Rights. The constitutional requirement that any ratification be approved by our Senate has facilitated our country's frequent failure to endorse widely accepted human rights treaties.

Nevertheless, under well-recognized principles of international law, human rights agreements and other international laws may be widely enough observed by the community of nations to acquire the status of customary law. Customary law is applicable to all states regardless of whether they have themselves actually ratified the document in question. Therefore, the United States’ failure to ratify certain human rights agreements does not necessarily insulate us from liability for violations of internationally recognized human rights as set forth in those documents.

2. REASONS FOR STRONG CONCERN WITH INFANT MALE CIRCUMCISION

...as early as 1965, numerous researchers have documented
the various forms of harm inflicted by circumcision.

A number of reasons exist for strong concern with the various forms of harm caused by circumcision. Beginning at least as early as 1965, numerous researchers have documented the various forms of harm inflicted by circumcision. Circumcision was found to be perceived by the child as an act of aggression and castration, to weaken the ego, disturb sexual identification, initiate regression toward more infantile and primitive modes of expression, and cause the child to withdraw and isolate itself from the disturbing stimuli.(1) Research also suggests that circumcision causes behavioral changes and that some reported gender differences may actually be a result of circumcision.(2)

The myth that a newborn baby cannot suffer pain has been convincingly debunked.(3) The harm circumcision causes to babies by the severe levels of pain has been repeatedly documented.(4) Concrete medical evidence demonstrates that relative to an adult, the circumcision experience is significantly more traumatizing to an infant, who has not yet developed methods to cope with pain and whose neurological pathways are not yet fully developed.(5) At least one study found that the level of adrenal cortisol response to the pain and stress of the procedure exceeds the response to blood sampling or injections and is not significantly reduced even by application of an anesthetic.(6)

This pain in turn causes permanent and irreversible changes in the developing brain, altering portions of the brain responsible for perceiving pain.(7) Developmental neuro-psychologist James Prescott found that domestic levels of violent crime, particularly violent sex-related crimes such as rape, grew in direct proportion to the rise in the number of sexually active circumcised males in American society:

It is not without psychobiological consequences that the brain system which is designed for the experience of pleasure and the expression of sexual love is first encoded with extraordinary and excruciating pain. In such individuals, all subsequent acts or experiences of genital pleasure are experienced upon a background of genital pain that is now deeply buried in the subconscious/unconscious brain . . . When these early experiences of genital pain are followed by a developmental deprivation of physical affectional pleasure in the maternal-infant relationship and in the adolescent sexual relationship, then violent destructive behaviors are the inevitable outcome.(8)

...an average circumcision removes 51% of a male's genital tissue

In a widely noted article, three researchers recently found that an average circumcision removes 51% of a male's genital tissue and also a highly significant number of nerve endings including extremely specialized tissue unique to that part of the body and fundamental to human sexual response.(9) Complications, which include deaths, occur with a frequency of between 2-5% or more depending on the definition applied.(10)

Ronald Goldman has comprehensively summarized the broad range of traumas caused by the procedure, including infant pain response, serious harm to infant neurological development and memory capability, the damage caused by memories of the procedure, the damage caused to self-esteem and body image, post-traumatic stress disorder, and serious sex-related effects.(11)

The procedure causes serious harm and lacks medical justification...

Reasons for concern with the procedure under human rights principles thus include a profound loss of highly specialized and sensitive sexual tissue which also serves important protective functions, loss of bodily integrity, traumatic and highly painful disfigurement, complications with a range of severity up to and including death, and the impermissibility of any mutilation of children's genitals performed with neither their consent nor medical justification.

Many unsuccessful attempts at justifications for the procedure have been made throughout the past century - hygiene, prevention of penile cancer, prevention of urinary tract infections, prevention of AIDS, etc. Yet no suggested medical basis for routine circumcision has ever survived scientific scrutiny.(12) The British Medical Society, Canadian Pediatric Society,(13) Australian College of Paediatrics,(14) and even the American Academy of Pediatrics(15) have stated that there is no justification for routine circumcision. Science has thus now turned its attention to male circumcision and has corrected many prior misconceptions which are holdovers from the Nineteenth and early Twentieth centuries. The procedure causes serious harm and lacks medical justification; it should not be tolerated in any civilized society.

3. HUMAN RIGHTS PRINCIPLES FORBID INFANT CIRCUMCISION

Well-recognized human rights principles forbid circumcision, and all other forms of male genital mutilation, as a human rights violation.

3.1. Circumcision Prohibited by Several Human Rights Documents

Several United Nations resolutions, conventions and declarations appear to forbid routine infant male circumcision. These prohibitions are based on such critical rights as the rights of the child, the right to freedom of religion, the right to the highest attainable standard of health, and the right to protection against torture.

3.1.1. Rights of the Child.

The Convention on the Rights of the Child - which we have signed but not ratified - imposes various obligations which are violated by male genital mutilation, including sexual abuse, torture, interference with privacy, the right to safety while under the care of a parent or guardian, and the right to health.

3.1.1.1. Male genital mutilation prohibited under provisions regarding sexual abuse, torture, and interference with privacy.

...current practices of governments such as the United States which permit, encourage,
and even arrange for circumcision are in violation of all of these provisions.

Article 34 of the Convention on the Rights of the Child requires states parties to undertake to protect the child from all forms of sexual exploitation and sexual abuse, and Article 36 further obliges states parties to protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.(16) Article 37(a) of the Convention on the Rights of the Child forbids subjecting any child to torture or other cruel, inhuman or degrading treatment or punishment. Article 16 bars arbitrary or unlawful interference with a child's privacy, and gives children the right to the law's protection against such interference. The Declaration of the Rights of the Child also stipulates that children must be protected against all forms of cruelty, neglect, and exploitation.(17) The current practices of governments such as the United States which permit, encourage, and even arrange for circumcision are in violation of all of these provisions. The government is acting illegally in facilitating circumcisions through for example, public health facilities, and in failing to prevent these violations whether carried out by public or private actors.

3.1.1.2. Child's right to safety while under care of parent or guardian violated by circumcision.

Article 19.1 of the Convention on the Rights of the Child provides that states parties must take all measures to insure that no violence, injury, or abuse, etc. occurs while the child is under the care of a parent or legal guardian. This article is violated by the circumcision of an infant while under a responsible adult's care, given the complications of the procedure and the lack of medical justification.

3.1.1.2. Parent or guardian is powerless to consent to an unnecessary medical procedure on a child.

The Committee on Bioethics of the American Academy of Pediatrics has stated in strong language the conceptual and ethical difficulties with the idea of "consent" by proxy:

"[P]roxy consent" poses serious problems for pediatric health care providers. Such providers have legal and ethical duties to their child patients to render competent medical care based on what the patient needs, not what someone else expresses ... [T]he pediatrician's responsibilities to his or her patient exist independent of parental desires or proxy consent.(18)

A parent's or guardian's assent cannot justify
a non-medically necessary procedure such as circumcision.

Moreover, with certain limited exceptions not relevant here, patients even have the right to refuse medical intervention of demonstrable medical necessity.(19) Circumcision is thus a violation of medical ethics because it is not based on a medical need of the patient and the patient has not agreed to the procedure. The Committee on Bioethics emphasized that the power to consent to a procedure rests solely with the patient himself or herself:

Only patients who have appropriate decisional capacity and legal empowerment can give their informed consent to medical care. In all other situations, parents or other surrogates provide informed permission for diagnosis and treatment of children with the assent of the child whenever appropriate. (emphasis in original) (20)

A parent's or guardian's assent cannot justify a non-medically necessary procedure such as circumcision. Only the consent of the individual himself can permit such an operation, and no infant is capable of providing such a consent.(21)

3.1.1.4. Child's right to health is violated by procedure.

Article 24 of the Convention on the Rights of the Child addresses health issues. Section 1 obliges states parties to recognize the child's right to enjoy the highest attainable standard of health. Similarly, Section 2 of Article 24 requires states parties to pursue full implementation of the child's right to enjoy the highest attainable health standard and to take appropriate measures, inter alia, to diminish infant and child mortality. These guarantees are violated where a medically unnecessary and extremely painful alteration of an infant male's genitals is performed, subjecting the child to the risk of complications and possible death. Section 3 requires states parties to take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. Article 24.1 of the International Covenant on Civil and Political Rights - which we ratified in 1992 - provides that every child shall have, without any discrimination as to, inter alia. sex, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the state.(22)

3.1.2. Freedom of Religion Does Not Justify Procedure

The right of freedom of religion does not justify and conflicts with male circumcision.

3.1.2.1. Children Bear Independent Right to Freedom of Religion

It is precisely in the interest of preserving freedom of religion that the government
must prevent ritual infant or childhood mutilations of either gender.

Children bear their own right to freedom of religion, independent of the wishes of their parents or guardians. Under Article 14.1 of the Convention on the Rights of the Child, children have the right to demand that states parties respect their right to freedom of thought, conscience, and religion. No infant is capable of consenting to a surgical procedure based on his own religion. Where the procedure is one based on religion, it is the parent's religion which motivates the procedure and not the religion of the person whose genitals are being surgically altered. Children subjected to genital mutilation have not asked for or consented to the procedure. A parent's consent is therefore again clearly insufficient.(23)

Moreover, it is precisely in the interest of preserving freedom of religion that the government must prevent ritual infant or childhood mutilations of either gender. The act of marking a child with a ritual mutilation, particularly upon the genitals, takes away that individual's right to a whole, functional body and his right to choose whether to be marked with the scars of that particular religion.

3.1.2.2. Exception to Freedom of Religion Applies Here.

Moreover, even if religion did somehow justify the procedure, which it clearly does not do, identical language in Article 14.3 of the Convention on the Rights of the Child, Article 18.3 of the International Covenant on Civil and Political Rights and Article 12.3 of the American Convention on Human Rights - is very clear in providing that an exception to the requirement to permit freedom of conscience and religion arises where such freedom if exercised would result in violating the public safety, order, health, or morals, or the fundamental rights and freedoms of another human being. A traumatic disfigurement of a nonconsenting baby's genitals should qualify as such a violation under this exception. Therefore, again, human rights principles forbid the mutilation.

3.1.3. Treaties Prohibiting Torture Apply To Circumcision

Treaties prohibiting torture, including the Convention Against Torture, the Declaration Against Torture, and the American Convention on Human Rights - signed but not ratified by the United States - also prohibit routine infant male circumcision.

3.1.3.1. Definition of Torture.

The Convention Against Torture - ratified by the United States - defines torture as, inter alia, any act by which severe pain or suffering, physical or mental, is intentionally inflicted on a person, with the consent or acquiescence of or at the instigation of a public official.(24) The Declaration Against Torture holds torture to be an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment which violates the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights.(25) Article 7 of the International Covenant on Civil and Political Rights and Article 5.1 of the American Convention on Human Rights provide that no one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.

3.1.3.2. Circumcision Constitutes Torture.

"Genital mutilation is a traditional practice of physiological torture
and psychological trauma destroying reproductive integrity and sexual health..."

Ecumenics International, which as discussed below is currently working closely with the United Nations to combat genital mutilation, notes that, whether performed on male or female persons, "Genital mutilation is a traditional practice of physiological torture and psychological trauma destroying reproductive integrity and sexual health with significant risks of death."(26) No objective observer who has witnessed a circumcision can seriously dispute that the procedure inflicts severe pain or suffering on the child. Circumcision does constitute torture.

3.1.3.3. United States Routinely Violates Torture Treaties.

The United States routinely violates the Convention Against Torture and the Declaration Against Torture. Article 2.1 of the Convention Against Torture obliges a state party to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction, and Article 2.2 adds that no exceptional circumstances whatsoever may justify the torture. Articles 4.1 and 4.2 of the Convention Against Torture state that any act of torture is a criminal offense which states parties must punish. Obviously the United States is not in compliance with these provisions: Our nation's laws permit the procedure, and many circumcisions are initiated, promoted, allowed, and/or paid for by public health officials and/or performed in public hospitals. Furthermore, state obligations regarding circumcision extend to all procedures, whether or not performed with direct government participation. Article 3 of the Declaration Against Torture prohibits any state from permitting or tolerating torture or other cruel, inhuman and degrading treatment or punishment. The United States, by failing to take action against circumcision as well as by subsidizing and performing the procedure, is also violating this article.

Without being explicitly defined, torture is also forbidden under Article 5 of the Universal Declaration of Human Rights, which we have adopted, Article 7 of the International Covenant on Civil and Political Rights, and Article 37 (a) of the Convention on the Rights of the Child.

4. AMERICAN AND STATE LAWS AGAINST ONLY FEMALE GENITAL MUTILATION FAIL TO OUTLAW MALE GENITAL MUTILATION IN VIOLATION OF EQUAL PROTECTION UNDER HUMAN RIGHTS LAW AND UNITED STATES CONSTITUTION

Laws against female genital mutilation which do not simultaneously prohibit male genital mutilation contravene principles of equal protection enshrined in human rights law., Statutes passed by the United States or by an American state also violate the requirement of equal protection under the United States Constitution.

4.1. Numerous Laws Forbid Only Female Genital Mutilation

Various countries, states and provinces have passed statutes which prohibit only female genital mutilation and do not address male genital mutilation.

Laws against (only) female genital mutilation...violate the requirement of
equal protection under the United States Constitution.

4.1.1. Federal Law in the United States.

In the United States, as public and legislative awareness regarding the horrors of female genital mutilation has grown, a number of provisions prohibiting female genital mutilation became law in 1995 and 1996. At the federal level, a law was passed in 1996 providing that female genital mutilation of a minor is a felony punishable by a fine of up to $250, 000 and/or imprisonment for not more than five years.(27)

Another new federal statute requires the Immigration and Naturalization Service to make available to all aliens from countries in which female genital mutilation is commonly practiced who are issued immigrant or non-immigrant visas 1) information on harm caused by female genital mutilation and 2) information concerning potential legal consequences in United States of performing or allowing female genital mutilation.(28) A third federal law passed in 1996 requires the Secretary of Health and Human Services to compile data on the number of victims of female genital mutilation residing in the United States, including the number of minors, to identify communities practicing female genital mutilation and carry out outreach and education activities regarding female genital mutilation's health effects, and to develop recommendations for education of medical students regarding female genital mutilation.(29)

4.1.2. State Laws in the United States.

This same year, California passed a law providing that female genital mutilation of a minor is punishable by imprisonment in state prison for two, four, or eight years.(30) Delaware has declared female genital mutilation of a minor a class C felony punishable by imprisonment for up to ten years.(31) Minnesota passed a statute classifying genital mutilation of any female as a felony punishable by imprisonment for more than one year.(32) California and Minnesota both enacted second laws directing their respective state departments of health services to establish and implement education, prevention and outreach activities in communities that traditionally practice female genital mutilation to inform community members about the health risks and emotional trauma inflicted by this practice and informing them and the medical community of the criminal penalties.(33) North Dakota's law defines female genital mutilation of a minor as a class C felony punishable by up to five years imprisonment and/or a fine of up to $5, 000.(34) Rhode Island passed a statute defining genital mutilation of any female as felony assault, punishable by imprisonment for not more than twenty years, the stiffest maximum penalty in any jurisdiction.(35) Tennessee outlawed genital mutilation of any female as a class D felony punishable by not less than two nor not more than twelve years imprisonment and in addition a discretionary fine not to exceed $5,000.(36) Wisconsin created a criminal law that holds female genital mutilation of a minor punishable by a fine of not more than $10,000 or imprisonment for not more than five years or both.(37)

4.1.3. Statutes in Other Countries.

Other countries have crafted legislation to prohibit female genital mutilation. Canada recently passed a criminal law specifying that female genital mutilation is an act of aggravated assault.(38) The crime is punishable by imprisonment for a term not exceeding fourteen years.(39) Minors cannot consent to the procedure, nor can any other person consent for them.(40) While the law provides an exception for duly qualified medical practitioners, this exception only applies where the procedure is performed for the benefit of the person's physical health or so that that person will have normal reproductive or sexual functions.(41) Since male genital mutilation generally lacks medical benefits as utterly as female genital mutilation does, this medical exception does not save Canada's law from violation of equal protection principles as discussed below. Canada's Criminal Code also prohibits the removal of children normally resident in Canada from Canada with the intention of committing assault, causing bodily harm, aggravated assault or any sexual offense.(42)

In Egypt, the Minister of Health issued a decree in July 1996 banning health professionals from performing the operation.(43) Kenya banned female genital mutilation under legislation passed in 1990.(44) New Zealand has passed a law barring and punishing by imprisonment for up to seven years the genital mutilation of any female or the arranging for a child to be removed from New Zealand for the purposes of performing female genital mutilation.(45) In the Sudan, legislation dating from 1946 bans infibulation but permits sunna.(46) Sweden banned health professionals from performing female genital mutilation in 1982.(47) The law provides for imprisonment for up to two years or a fine if there are mitigating circumstances, but also fixes a penalty of imprisonment for one to ten years if the offense is a "grave" one (if it has caused danger to life, grievous bodily harm, a serious disease or has otherwise involved extremely ruthless conduct).(48) The United Kingdom outlawed genital mutilation of any female in 1985, providing for a fine and/or imprisonment for up to five years.(49) Subsequently, a law was passed providing for the investigation of suspected violations and enabling the removal of a child from her home where this is the only way that her protection can be guaranteed.(50)

4.1.4. Statutes in Other Provinces.

New South Wales has outlawed the genital mutilation of any female and declared it punishable by imprisonment for up to seven years.(51) Although the Civil Code of Quebec does not explicitly criminalize either female genital mutilation or male genital mutilation, both practices should be illegal under provisions outlawing the removal of tissue from an unconsenting individual.(52) Moreover, a person who gives consent to care for another person must act in that person's sole interests, ensuring that any care for which consent is given is beneficial, advisable in the circumstances and that the risks incurred are not disproportionate to the anticipated benefit.(53) Finally, a minor incapable of giving consent may have a part of his body alienated only if that part is capable of regeneration and provided that no serious risk to his health results, both requirements which are violated by infant circumcision.(54)

4.2. Proposed Legislation Also Forbids Only Female Genital Mutilation

A number of other countries and states have proposed legislation outlawing female genital mutilation and not addressing male genital mutilation. A pending bill in Illinois would classify genital mutilation of any female as a Class X felony,(55) punishable by imprisonment for not less than six and not more than thirty years,(56) and by a fine of up to $10, 000.(57) Legislation against female genital mutilation has been defeated in Colorado,(58) New York,(59) South Carolina,(60) and Texas.(61)

4.3. State Laws Grant Circumcisers Special Exceptions

Other statutes actually accord circumcisers special exceptions and protections.

4.3.1. Ritual Abuse Laws Exempt Male Circumcision.

...legislators tacitly recognized the reasonableness - in the absence of the statutory loophole -
of classifying circumcision as abusive...

Ritual abuse laws in California(62) Idaho,(63) and Illinois(64) specifically exempt male circumcision. The need to mention circumcision and circumcisers in such statutes is certainly intriguing, to say the least. If there were no potential for male circumcision to be considered ritual abuse, then these laws would be utterly superfluous. They suggest that the legislators tacitly recognized the reasonableness - in the absence of the statutory loophole - of classifying circumcision as abusive, unethical, and/or inhumane.

4.3.2. Medical Licensing Laws Exempt Mohels Performing Male Circumcision.

Medical licensing laws specifically exempt mohels for the purposes of performing male circumcision in Delaware,(65) Minnesota,(66) Montana,(67) and Wisconsin.(68) Of course, regulations and/or official tolerance permits mohels to perform the procedure in all fifty of the states despite arguably being no more defensible under human rights or constitutional principles than are the statutory exemptions. The reprehensible double standard implicit in legislation addressing only the mutilation of one gender strikes a particular noxious note here. All three states which see fit to enshrine at the statutory level the mohels, special authorization to mutilate males have simultaneously passed laws barring female genital mutilation.

4.4. Laws Against Female Genital Mutilation Violate Equal Protection Under International Human Rights Law

...laws against female genital mutilation, and special statutory exceptions for male
circumcision, directly conflict with Article 7 of the Universal Declaration of Human Rights

No law anywhere in the world currently outlaws male genital mutilation, either alone or in combination with a prohibition of female genital mutilation. On the other hand, as we have seen, many statutes and proposed laws prohibit only female genital mutilation, and others grant special protections and exceptions regarding male circumcision.

By only safeguarding females against alteration of their genitals while doing nothing to protect males, laws against female genital mutilation by definition discriminate against males. Arguably, for males hoping to prevent their own mutilation such laws are worse than no laws at all in suggesting through their exclusive attention to female genital mutilation that male genital mutilation is a permissible and unobjectionable practice. Statutes granting special exceptions only to circumcisers of males but not to those who genitally mutilate females also clearly discriminate against males. Such laws highlight the artificiality of our culturally based special treatment of male circumcision.

Both laws against female genital mutilation and special statutory exceptions for male circumcision directly conflict with Article 7 of the Universal Declaration of Human Rights, which states:

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of the Declaration and against any incitement to such discrimination.

Such laws also violate Article 55(c) of the Charter of the United Nations, which states that the United Nations "shall promote ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.(69) All members of the United Nations are bound by this and all charter provisions. Therefore, a human rights violation occurs where males are discriminated against by not enjoying legal protection from genital mutilation which is enjoyed by females. Such legislation can only be rendered acceptable under human rights principles if its ambit is expanded to also forbid male genital mutilation including circumcision. Countries, states and provinces must amend these laws, regulations and practices to protect males as well as females from genital mutilation.

Under Article 7 of the Universal Declaration, states cannot rest in confidence that they are violating no laws once they have amended discriminatory anti-female genital mutilation laws to include men within their scope. Even where the state is not the mutilator, a human rights violation also occurs where males do not receive equal protection from genital mutilation applied in a discriminatory manner, e.g., through predominant or exclusive mutilation of their gender. Worldwide, five out of six victims of genital mutilation are male.(70) Males are entitled to equal protection against such discrimination wherever it occurs and against any incitement to such discrimination. States are thus obligated to do more than merely eliminate all their gender-specific laws against genital mutilation. States also carry a positive obligation to apply their resources to protect males as well as females against genital mutilation practices which are discriminatorily applied to males (or to females) and to stop anyone attempting to bring about such discriminatory genital mutilation.

4.5. Laws Against Female Genital Mutilation Violate Equal Protection Under American Law

A natural question which arises in considering the flurry of legislative activity this year against female genital mutilation in the United States is whether the criminalization of the alteration of only female genitals - while not addressing male genital mutilation - can survive constitutional scrutiny. The answer is clearly no. In addition to the human rights considerations discussed above, in the United States the dramatically unequal treatment of males and females arising from the statutory prohibitions of only female genital mutilation also violates equal protection, a basic principle enshrined in the Fifth Amendment of our Constitution.

Since 1976, legislative classifications based on gender have been subject to an "intermediate scrutiny" which is less demanding than that accorded to classifications based on race or ethnic origin or sometimes alienage, comparable to the level of scrutiny of illegitimacy classifications, and more rigorous than the "rational basis scrutiny" attached to most other classifications. One recent Supreme Court decision suggests that the gap is narrowing between intermediate and strict scrutiny.(71) Justice Ginsburg wrote for the Court, emphasizing repeatedly that "[p]arties who seek. to defend gender-based government action must demonstrate an exceedingly persuasive justification, for the action."(72) As my colleague Zenas Baer discusses in his review of American equal protection law in this volume (see Sexual Mutilations: A Human Tragedy), the state is required to show not only that the law substantially serves the important governmental objectives, but also that "the discriminatory means employed are substantially related to the achievement of those objectives."(73) Baer has initiated an equal protection lawsuit against the North Dakota female genital mutilation law which is currently on appeal.(74) Parallel lawsuits contesting the Minnesota and national female genital mutilation laws are also being prepared.

American society does not yet recognize the horror of male genital mutilation
as it does regarding female genital mutilation.

Unfortunately, due in part to principles of cultural blindness discussed infra in Section 5, American society does not yet recognize the horror of male genital mutilation as it does regarding female genital mutilation. North Dakota activists against female genital mutilation and male genital mutilation began their attempts to institute legislative change on these issues by lobbying state legislators to pass a law banning genital mutilation of both males and females. when it became clear that insufficient support existed for this proposed bill, the activists threw their support behind a bill banning female genital mutilation only, planning on initiating the current lawsuit as soon as the ink had dried on the female-only genital mutilation legislation.

4.6 Female-Only Genital Mutilation Legislation Is Not Justified Under A Theory of Dramatically Lesser Severity of Harm

One frequent justification for legislation addressing only female genital mutilation is the supposedly dramatic contrast in degree between the severity of female genital mutilation and male genital mutilation. However, as discussed at greater length in Section 2, this suggestion is quite incorrect, considering the wealth of evidence including recent research documenting that the average male circumcision removes at least half of the skin of the penis and also does significant other damage.(75) The long-term physical, sexual and psychological harm caused by the procedure has never been investigated because of the underlying and erroneous assumptions that the procedure is benign.

Moreover, the human rights principles discussed above are absolute ones not subject to a balancing in the scales of international justice relative to other violations. Political history - notably that of women - and human rights principles alike should eloquently remind us to resist any temptation to create hierarchies of rights and then to argue that we need not or cannot now address the abuses we have placed lower in our hierarchy.(76)

5. CULTURAL BLINDNESS AND CIRCUMCISION

Lawsuits and political activism play different yet equally invaluable roles
in effecting social change.

Lawsuits and political activism play different yet equally invaluable roles in effecting social change. Law generally follows the currents of society and does not commonly serve as the leader of dramatic social transformation. Judges rarely use their bench as a platform from which to hurl themselves into the vanguard, preferring to respond to well-established social trends. This was true, for example, with the civil rights and women's rights movements, in which activists worked for many years to lay the political groundwork which later supported legal strategies that ultimately led to judicial acknowledgment of previously unimaginable rights.

This anti-male gender discrimination harms both men and women...

Each court will naturally, almost necessarily, view all issues it addresses through a set of filters derived from that society's particular social and cultural prejudices. American judges, for instance, will base their decisions in part on our society’s almost unconscious biases and blind spots, of which ample historical and current evidence exists. Throughout our history, various horrors have been enshrined and endorsed by the laws of the United States, including slavery, "separate but equal" facilities for whites and blacks, and the disenfranchisement of all women and all non-property-owning men. Today in America women's and men's contrasting socializations are reinforced by discriminatory child custody and divorce decisions.(77) This anti-male gender discrimination harms both men and women by reinforcing the presumption and perception that men's proper role is as a non-child-rearing wage earner and women's proper role is in the home taking care of children. Such stereotypes limit the opportunities for each one of us to aspire to our full human potential. On a very different yet analogous front, capital punishment, a practice with obviously grave human rights implications, which a large majority of the world unequivocally rejects as barbaric, has been endorsed by United States law.

Cultural blindness around the world has played a strong role in a broad range of body mutilation and, more specifically, genital mutilation practices. In the West, our differing socialization and perceptions of men and women have enabled us to pass laws addressing female genital mutilation and not male genital mutilation. While generally and rightly viewed with horror by outside cultures, any particular mutilation comes to be seen by the perpetrating culture which developed it as at worst benign, and often even of positive benefit. Throughout history a broad range of body mutilation practices have been accepted, including footbinding, placing growing children in vases so their bones would be bent to the shape of the vase, and many other forms of genital mutilation of both sexes. As with infant male circumcision, all these practices were carried out without the victim's consent.

Criminalization of female genital mutilation is not an anomaly but rather a laudable first step in a beneficial, enlightened process of eventually protecting all children from surgical or ritual alteration of their genitals. In the United States, we continue to tolerate altering baby boys' genitals in one particular manner.

6. CONCLUSION

Cultural blindness should not be allowed to continue to warp American law by insulating
perpetrators of circumcision from liability under a broad range of legal theories.

Circumcision causes lasting and severe harm to the males who are compelled to have the procedure performed on their bodies. A number of human rights documents - whether ratified or applicable under principles of customary international law - forbid routine infant male circumcision. Laws in a number of states and countries which outlaw female genital mutilation but not male genital mutilation and laws granting circumcisers special legal loopholes are clearly vulnerable under constitutional and human rights principles. Cultural blindness should not be allowed to continue to warp American law by insulating perpetrators of circumcision from liability under a broad range of legal theories. We benefit today from a more profound understanding than we have ever had before of the medical and psychological harm caused by circumcision as well as the legal and human rights barriers to the practice, and thus should criminalize it and thereby protect our children. No basis in international human rights law or domestic law justifies the discriminatory prohibition of only female genital mutilation.

J. Steven Svoboda is a former Harvard Law School Human Rights Fellow, an independent attorney active in human rights law,
and a member of Human Rights Advocates. His presentation at the Fourth International Symposium on Sexual Mutilations
on the legal and constitutional issues surrounding genital mutilation of unconsenting minors was published in 1997 in
"Sexual Mutilations: A Human Tragedy" by Plenum Press. Mr. Svoboda is founder of Attorneys for the Rights of the Child
He can be contacted through: Attorneys for the Rights of the Child 2961 Ashby Avenue Berkeley, CA 94705 USA
Tel/Fax 510-595-5550 E-mail: arc@post.harvard.edu

References

1. Cansever G. Psychological effects of circumcision. British Journal of Medical Psychology 1965 38:321-331.

2. Richards MPM, Bernal JF, and Brackbill Y. Early Behavioral Differences: Gender or Circumcision? Developmental Psychobiology 1976 9:89-95.

3. See, e.g., Anand KJS and Hickey PR. Pain and its Effects in the Human Neonate and Fetus. New England Journal of Medicine 1987, 317:1321-1329.

4. See, e.g., Gunnar M, Malone S, Vance G, and Fisch R. Coping with Aversive Stimulation in the Neonatal Period: Quiet Sleep and Plasma Cortisol Levels during Recovery from Circumcision. Child Development 1985; 56:824-834.

5. See, e.g., Anand KJS and Hickey PR. Pain and its Effects in the Human Neonate and Fetus. New England Journal of Medicine 1987; 317:1321-1329.

6. Williamson P and Evans N. Neonatal Cortisol Response to Circumcision with Anesthesia. Clinical Pediatrics 1986; 25:412-415.

7. Dixon S, Snyder J, Holve R and Bromberger P. Behavioral effects of circumcision with and without anesthesia. Journal of Developmental and Behavioral Pediatrics 1984; 5:246-250.

Taddio A., Goldbach M., Ipp M., Stevens B., Koren G. Effect of neonatal circumcision on pain response during vaccination in boys. Lancet 1995; 345:291-292.

Fleiss PM. Circumcision. Lancet 1995; 345:927.

8. Prescott JW. Genital Pain vs. Genital Pleasure: Why the one and not the other? Truth Seeker 1989; 1:14-21.

9. Taylor JR, Lockwood AP and Taylor AJ. The Prepuce: Specialized Mucosa of the Penis and its Loss to Circumcision. British Journal of Urology 1996;77:291-295.

10. Kaplan G. Complications of Circumcision. Urologic Clinics of North America 1983; 10:543-549. J. Gearhart and J. Rock. Total Ablation of the Penis after Circumcision with Electrocautery: A Method of Management and Long-Term Followup. Journal of Urology (Baltimore) 1989; 142:799-801.

11. Goldman R. Circumcision: The Hidden Trauma. Boston: Vanguard Publications, 1997:1-56, 82-123.

12. Morgan WK. The Rape of the Phallus. Journal of the American Medical Association 1965; 193:123-4. EN Preston. Whither the Foreskin? - A Consideration of Routine Neonatal Circumcision. Journal of the American Medical Association 1970; 213:1853-8.

13. Fetus and Newborn Committee, Canadian Paediatric Society. Neonatal Circumcision Revisited. Canadian Medical Association Journal 1996; 154:769-780.

14. Australian College of Paediatrics. Position Statement: Routine Circumcision of Normal Male Infants and Boys. 27 May 1996.

15. American Academy of Pediatrics, Committee on Fetus and Newborn. Standards and Recommendations for Hospital Care of Newborn Infants, 5th ed. Evanston, IL: American Academy of Pediatrics, 1971:110. This position was reiterated in 1975. Thompson HC, King LR, Knox E., et al. Report of the ad hoc task force on circumcision. Pediatrics 1975; 56:610-611. The position was again reiterated in 1983. American Academy of Pediatrics. Committee on Fetus and Newborn. Guidelines for Perinatal Care, 1st ed. Evanston, IL: American Academy of Pediatrics, 1983:87. However, with leading circumcision proponent Edgar J. Schoen sitting on the AAP Task Force on Circumcision, in 1989 the AAP issued a more "balanced" report. American Academy of Pediatrics Task Force on Circumcision. Report of the Task Force on Circumcision. Pediatrics 1989; 84:388-391. The AAP is currently preparing to issue a new position statement on the issue.

16. "Convention on the Rights of the Child," UN GA resolution 44/25, November 20, 1989.

17. "Declaration of the Rights of the Child," UN GA resolution 1386 (XIV), November 20, 1959, Principle 9.

18. American Academy of Pediatrics Committee on Bioethics. Informed Consent, Parental Permission, and Assent in Pediatric Practice. Pediatrics 1995; 95:315.

19. See. e.g., American Academy of Pediatrics Committee on Bioethics. Informed Consent, Parental Permission, and Assent in Pediatric Practice. Pediatrics 1995; 95:314.

20. Ibid.

21. See also generally Dwyer, J. Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights. California Law Review 1994; 82:1371-1447 (hereafter, "Debunking the Doctrine.")

22. "International Covenant on Civil and Political Rights," UN GA resolution 2200 A [XXI], December 16, 1966.

23. See generally Dwyer J. Debunking the Doctrine. Supra note 21. It should also be noted that medical circumcisions can never satisfy Jewish law, which requires the presence of a mohel to perform the procedure and a sandek to assist by holding the baby, and also stipulates, inter alia, certain specific rituals and the performance of the act on the eighth day following birth. See, e.g. Diamant A. The NEW Jewish Baby Book. Woodstock, Vermont: Jewish Lights Publishing, 1994:95, 89-109.

24. "Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment," UN GA resolution 39/46, December 10, 1984, Article 1.

25. Articles 1.2 and 2, "Declaration on the Protection of All Persons from Being Subjected to Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment," UN GA resolution 3452 (XXX) , December 9, 1975.

26. Ecumenics International. News Release: Ad Hoc Working Group of International Experts on Violations of Genital Mutilation. Sloatsburg, New York: Ecumenics International July 1, 1995 (hereafter, "News Release").

27. 18 United States Code §§ 116, 1, 3571(b)(3)

28. 104th Congress, 1st Session, House of Representatives Bill 2202.

29. 104th Congress, 2nd Session, House of Representatives Bill 3019(e)(1).

30. California Penal Code § 273.4.

31. Delaware Code Title 11, §§ 1113, 4205(b) (3) (date of enactment July 3, 1996).

32. Minnesota Statutes §§ 609.2245, 609.02.

33. California Health and Safety Code § 124170; Minnesota Criminal Code § 144.3872.

34. North Dakota Criminal Code §§ 12.1-36-01, 12.1-32-01.4.

35. 1996 Session, Senate Bill 2317, codified as Rhode Island General Law § 11-5-2 (date of enactment July 3, 1996).

36. Tennessee Code Annotated §§ 39-13-857, 40-35-111(b)(4).

37. 1995 Wisconsin Assembly Bill 365 (date of enactment May 28, 1996).

38. Criminal Code of Canada, § 268(3).

39. Criminal Code of Canada, § 268(2).

40. Criminal Code of Canada, § 268(4).

41. Criminal Code of Canada, § 268(3).

42. Criminal Code Section 273.3.

43. Mostafa H. The Unkindest Cut of All. Egypt Today 1996; -:103-104. President Nasser's 1958 ban of the practice in hospitals and clinics affiliated with the Ministry Of Health was never strictly enforced and was officially reversed in 1994, setting the stage for the Minister of Health's 1996 decree.

44. Australia Family Law Council. Report to Attorney General. Supra note 43, at 70.

45. Crimes Act 1961, as amended 1995, §§ 204A and 204B.

46. Australia Family Law Council. Report to Attorney-General. Supra note 43, at 70.

47. Act 316 of 1982 Prohibiting the Circumcision of Women.

48. Ibid.

49. Prohibition of Female Circumcision Act 1985.

50. The Children Act 1989.

51. Crimes (Female Genital Mutilation) Amendment Act 1994 (effective May 1, 1995).

52. 1991, Chapter 64 (Bill 125), Civil Code of Quebec, Article 11.

53. 1991, Chapter 64 (Bill125), Civil Code of Quebec, Article 12.

54. 1991, Chapter 64 (Bill125), Civil Code of Quebec, Article 19.

55. Illinois 1995-96 Sessions, House Bill 3572, introduced on February 9, 1996, would create 720 Illinois Compiled Statutes § 5/12-34.

56. 730 Illinois Compiled Statutes § 5/5-8-1(3).

57. 730 Illinois Compiled Statutes § 5/5-9-1(a)(1).

58. Colorado 1996 Sessions, Senate Bill 96-31.

59. New York State 1995-96 Sessions, Senate Bills 510 and 597, and Assembly Bills 690 and 788.

60. 1994 South Carolina Sessions, House Bill 4710.

61. 1995 Texas Sessions, House Bill 2442.

62. California Penal Code § 667.83.

63. Idaho Criminal Code § 18-1506A(b).

64. 720 Illinois Compiled Statutes § 5/12-32 and § 5/12-33(2).

65. 24 Delaware Code § 1703(e)(4).

66. Minnesota Statute § 147.09(10).

67. Montana Code § 37-3-103(h).

68. Wisconsin Statute § 448.03(g).

69. Charter of the United Nations, 26 June 1945.

70. See e.g., Ecumenics International. News Release. Supra note.

71. United States v. Virginia, 116 S. Ct. 2264, 2275 (1996).

72. United States v. Virginia, supra, 116 S. Ct. at 2274, 2275, quoting Mississippi University for Women v. Hogan, 458 U.S. 718, 7243 (1982) (O'Connor, J.).

73. United States v. Virginia, supra, 116 St. Ct. at 2275, quoting Mississippi University for Women v. Hogan, supra, 458 U.S. at 724.

74. See e.g., Springer P. Suit claims N.D. genital mutilation law biased. The Forum, June 7, 1996.

75. Taylor, JR, Lockwoood, AP, and Taylor, AJ. The Prepuce: Specialized Mucosa of the Penis and its Loss to Circumcision. British Journal of Urology, 1996; 77: 291-295.

76. In considering the legal implications of male circumcision, we may be guided by the analysis of professionals focusing on issues of medical ethics. I recently attended the III World Congress of Bioethics, the annual meeting of the American Association of Bioethics, and the Post-Congress Symposium on the Globalization of Bioethics: International Human Rights and the Health Professions. The consensus in the bioethics community opposed procedures which may cause harm and are performed without medical benefit, such as male circumcision. Consistently with the human rights principles outlined above, presenters stressed that no such procedure is permissible regardless of the asserted level of harm and that all interventions must be made consistent with principles of bodily integrity.

77. See e.g., Kimbrell, A. The Masculine Mystique. New York: Ballantine Books, 1995: 145-147.

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