FGM legislation is too weak and too strong?

An interesting and timely paper by Dr Arianne Shahvisi
was published recently.

It identifies a number of problems in regard to FGM legislation in Britain. She discusses them in detail and proposes solutions which, while I do not agree with them all, in particular how they should be achieved, are nevertheless welcome. That is because they at least reflect the beginning of a discussion that needs to happen around the practice generally and in regard to the law specifically.

The background is the 2015 UK trial when a junior registrar obstetrician faced charges of performing or encouraging FGM. The presumed ‘victim’ had not requested for charges to be pressed. Fortunately, the Doctor was acquitted by a jury who having sat through two weeks of evidence, reached a ‘not guilty’ verdict in less than 30 minutes.

In her introduction Dr Shahvisi writes: “I argue that current legislation regarding FGM is difficult to parse from a medical ethics perspective. Either by ignorance or design, its supposedly good intentions are ultimately marred with sexism and racism, since the legislation devalues the consent capacities of racialised adult women, whilst the lack of legislation around male circumcision amounts to a failure to protect the bodies of male children.

These legislative facts are hard to reconcile with medical professionals’ prima facie understandings of adult capacity, child protection, and equity. As a result, not only should we be unsurprised when clinicians’ actions indicate confusion but we ought perhaps to expect clinicians to be confused, and might even learn something valuable from that confusion. The above obstetrician’s actions may well reflect the inconsistency of the legislation surrounding non-therapeutic genital surgery, and the ambiguity regarding the target group for protection.”

She then goes on to describe the faults and shortcomings of the current legislation by drawing attention to the gap between its ostensive objectives but problematic implications.

The FGM Act 2003 deems it an offense ‘for a person to excise, infibulate, or otherwise mutilate any part of a girl’s labia minora, majora or clitoris’. She suggests that while the Act seems uncontroversial to the extent that it dovetails with child protection legislation and thereby enshrines the importance of consent and bodily autonomy – central tenets of medical ethics – it oversteps this mandate in its paternalistic extension to women.

That is because definition 6(1) of the Act states that ‘Girl includes woman’. By implication this infantilises her, rendering her incapable of giving consent.

She suggests that in regard to the law: ‘Either by ignorance or design, its supposedly good intentions are ultimately marred with sexism and racism, since the legislation devalues the consent capacities of racialised adult women, whilst the lack of legislation around male circumcision amounts to a failure to protect the bodies of male children.’

And she identifies that there is confusion concerning the ethico-legal status of non-therapeutic genital surgeries for children and adults which violate tenets of medical ethics.

The paper is topical and keys into a number of concerns: that all types of FGM are illegal despite that some are less severe than some forms of male circumcision, which is legal. And that while non-therapeutic genital cosmetic surgery is legal for all adults, warns ‘adult women-of-colour beware: you will be refused if there is a whiff of ‘ritual’ about your choice.’

She identifies the law as being too weak because it does not enable children of all sexes to be treated alike in their right to bodily protection. But it is also too strong because all adult women are not treated alike in their right to consent to bodily modifications.

Her conclusion summaries the aspects she discusses in the paper and exposes the double standards at play. I reproduce them below without comment although each merits a response in its own right.

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‘The obstetrician in question stood trial because he had evidently broken the law, which can only be deemed an ethical shortcoming to the extent that the FGM Act is considered to be just. I do not believe that it is. First, it is too weak. Whilst it seems adequate to protect female children from non-therapeutic genital surgery, it does nothing to protect male children. Yet it is also too strong.

It forbids some women of colour from particular kinds of genital surgery, since the pressures of their presumed culture are deemed to invalidate their ability to act autonomously. Meanwhile, it permits other women to undergo broadly similar procedures because their cultures are deemed to be inexplicably causally irrelevant to their life choices. In this sense, UK FGM legislation embodies discourses of sexism and ethnocentrism. I see this as a failure of self-critique on the part of British lawmakers, who would do well to pass a critical eye over the punishing ways in which sexism operates on women’s bodies in the UK and other Western contexts.

In light of these reflections, I suggest that the scope of this law be extended to include all forms of non-therapeutic genital surgery for all children. A ‘genital mutilation Act’, dovetailing with broader child protection legislation, could apply to the bodies of all those below the age of consent, including: FGM, male circumcision, and even non-therapeutic intersex genital surgeries. Further, the current legislation should also have its scope restricted so that capacitated adult women are not included.

The first recommendation would treat children of all sexes as alike in their right to bodily protection; the second recommendation would treat all adult women alike in their right to consent to bodily modifications. The extent of those bodily modification as permitted by medical practice guidelines is another matter entirely, but given the trends in FGCS, it seems that some forms of FGM would be de facto available. Implementing these reforms would provide practitioners with a consistent backdrop against which to make their clinical decisions regarding non-therapeutic genital surgeries.

Of course, medicalising FGM for adult women runs the risk of normalising the practice. Yet even for a consenting adult, there is no good reason to provide such services on the National Health Service, since they do not amount to the treatment or correction of a disease. But equally, there is no reason to ban them from private clinics, since they do not differ from other forms of genital cosmetic surgery – they share a family-resemblance in the oppression they represent, and carry similar risks under similar conditions – and they bear striking similarities to male circumcision, which has never been legislated against. Further, consideration must presumably be given to the risk and humiliation incurred should a woman decide to have these procedures performed in a non-medical context.

To those who worry that such amendments would leave women more vulnerable to misogynistic practices, I ask that they turn their efforts to the many movements, across all cultures, to tackle the way in which patriarchy delimits women’s lives along lines that make practices such as FGM and FGCS possible and even meaningful. They should also bear in mind that if, in this process, women’s voices are ignored, or their choices consistently over-ruled, side-lined, or pre-determined, even under the guise of ‘beneficence’, the entire enterprise is undermined.

All children who undergo FGM, and those women who are coerced, have their agency limited by their communities. They are objectified by the patriarchal mores which dictate how their bodies should be in relation to the roles they must play. The additional denial of agency from policy makers and medical professionals, who have dictated that these women’s genitals should (post-pregnancy) be ‘restored’– albeit passively – to pre-FGM genitals regardless of the woman’s wishes quite literally adds insult to injury. They too are dictating how a woman’s genitals should be presented. In neither case is an adult woman being permitted to determine how her own intimate body parts should be.

To enforce the current UK law on FGM as it relates to adult women is to gloss over the very ethical issues that put FGM into the centre of an ethical debate to start with (namely, challenging patriarchy and protecting bodily autonomy) and to selectively punish particular cultures for their practices, while leaving functionally equivalent practices as sacrosanct. It is to assert a particular set of Eurocentric norms on women with no consideration for their own relationships with their bodies and with limited understanding of how they use those bodies within their communities. It is further to demonstrate enormous hypocrisy when FGCS is showing an upward trend in the private medical sector, with no laws to stem the tide, and when the rich and growing literature on the ethical issues with male circumcision (cf. Earp, Myers, and Johnson) is yet to translate into serious professional reflectioni or legal reform.

(i. The Royal Dutch Medical Association released a position paper in 2010 which described male circumcision as medically unjustifiable, risky, and a violation of autonomy and physical integrity. The paper argued that legal prohibition is defensible, but that restriction, at the very least, should be considered.)

Dr Shahvisi’s paper Why UK doctors should be troubled by FGM legislation can be accessed here.