Exploring opposition to ritual female genital cutting since the first U.S. federal prosecution: the 2017 Detroit case

Abstract

In the U.S., the 1996 federal law banning medically unnecessary female genital cutting (FGC) of minors was rendered unconstitutional in 2018 in the Nagarwala case. This paper highlights legal developments at the federal and state levels in the U.S. since this trial. It looks at anti-FGC frameworks in other Western countries such as Australia, the UK, France, and Switzerland for comparison. The Australia High Court ruled in favor of a broader interpretation of the words "mutilate" (as in "female genital mutilation" or FGM) and "clitoris" in 2019. In the UK in 2019, a mother of a three-year-old became the first person convicted of "FGM". In the U.S., 2020 federal legislation strengthened opposition to FGC of minors. Twenty-one U.S. states have developed legislation since 2017 that was enacted to oppose such FGC. The 14th Amendment to the U.S. Constitution affords equal protection under the law without regard to sex or gender, prompting increased inclusion of neonatal male circumcision and normalizing surgery for children with intersex traits in the FGC legislation debate. More widely, the principle of equal application of the law raises questions about the legality of adult female genital cosmetic surgery where adult "FGM" is banned. Tensions between state law and religious law introduce complexities to allowing religious and cultural communities to practice their preferred way of life when this conflicts with human and civil rights afforded to individuals within secular liberal democracies. For consistency, the anti-FGC framework in the U.S. may need to shift towards calls to protect all children, regardless of sex characteristics (i.e., including male and intersex children) from medically unnecessary, non-consensual genital cutting.