So welcome everyone to this Second St. Cross, special ethics seminar for the term.
Today we have our very own I can say our very own.
Brian now has recently joined the Uehiro Centre as a senior research fellow.
He's also associate director of the Yale Hastings Programme and Ethics and Health Policy,
which unsurprisingly is at Yale and the Hastings Centre and is the Associate Editor of and associate editor of the Journal of Medical Ethics.
His first book was out, yeah, a couple of years ago now.
Love drugs, the chemical future or relationships? That's what Julian said Liska.
And he's got a new book on the way, or at least under contract, and I'm assuming they're seeing some of the work related to the book today.
That book is sex and circumcision. And today he's going to present his paper against legalising female circumcision of minors and takes away, right?
Well, thank you for the nice introduction and make sure my sides are working here.
OK, so I'll just give an overview of what I hope to cover in the next 40 50 minutes or so.
The main goal is that I want to inform you of some growing efforts amongst some legal scholars and bioethicists to advocate
for the legalisation of what they regard as minor forms of ritual or otherwise medically unnecessary female genital cutting.
In particular, they're advocating that particular practises should be legalised, such as nicking,
pricking or partial removal of the clitoral prep, use or hood or parts of the labia menorah.
And they tend to advocate that the practitioner should try to avoid cutting the clitoral glands.
And so for that reason, they sometimes refer to this subset of practises as female circumcision.
Given the anatomical analogy between the clitoral foreskin and the penile foreskin,
where removal of the latter is called male circumcision in common parlance.
So one important legal backdrop to this discussion is that just a handful of years ago,
the U.S. federal law against what's legally defined as female genital mutilation and I'll talk about
terminology in a moment was ruled unconstitutional by a federal judge and it was struck down.
This was a very significant development, and I'll I'll return to this at the end of the talk.
In particular, I'll tell you about the reinstatement of this law in 2021.
This was the last one of the last laws signed by the Trump administration.
But some scholars argue that this new law is also vulnerable to being struck down for various reasons.
In the past five years, there's been a major shift in legal and bioethical scholarship,
focussing on the ethics or legality of genital cutting based on the sex of the affected person is breaking down or being increasingly challenged,
whereas you're starting to see these new battle lines, so to speak,
drawn between advocates of children's rights who argued that children should be protected from medically unnecessary interference with their sexual
anatomy versus those who advocate for placing greater weight on parental and religious rights to authorise genital modifications for their children.
So long as by some threshold of harm, it's considered to be insufficiently harmful to warrant state interference.
So it seems likely that legal protections for under-18 girls against medically
unnecessary forms of genital cutting are at least at risk of continuing to be eroded.
And this has potential UK implications because, along certain dimensions,
the UK law regarding FGM as it's defined also in UK law and the U.S. law have some similarities.
Interestingly, the UK law doesn't have an age criterion,
so even over 18 year olds who undergo what the law defines as mutilation are considered to have been subjected to an illegal practise in the UK.
So I want to help you understand these developments.
The literature here has really stripped far ahead of most sort of common knowledge amongst the public,
and even many scholars are not aware of these developments. So this is a seminar that's sharing with you really the latest work.
I want to tell you a little bit about my perspective on these issues,
just so you can tell what I'm what I'm trying to accomplish with this talk and when I'm speaking
from my own perspective versus when I'm trying to clarify the perspective of others in general,
my goal is going to be to steal the argument of advocates for legalisation.
This is because these are very serious senior scholars who are making arguments that many will find compelling, and I argue against this view.
The title of this talk originally is taken from a paper in which I argue against legalisation of so-called female circumcision of minors.
Nevertheless, I think it's important to give the strongest showing of the of the opponents argument.
My background academically, is in sort of two areas.
At least one is philosophical ethics and one is in social psychology.
I have a Ph.D. in philosophy and psychology, so I often evaluate complex practises from wearing two different hats.
I from my ethical hat, where I make normative arguments. When I published in the Journal of Medical Ethics or comparable journals,
I consistently argued that all medically unnecessary genital cutting of minors, including supposedly superficial forms, are wrong.
I don't argue that they're wrong because they're harmful. Necessarily. I argue rather that they're wrong because they're disrespectful.
They involve an unwarranted and unjustified intrusion into the private sexual anatomy of somebody who is vulnerable and cannot consent to that.
So that's my ethical perspective that I've been pursuing now for something like 10 years.
Recently, I had the privilege of working with about 90 colleagues in anthropology, medicine, philosophy, law,
gender studies and so forth to put together a shared perspective where we argued that under most conditions,
cutting any person's genitals without their own informed consent is a serious violation of their right to bodily integrity again,
irrespective of how harmful some third party judges the cutting to be.
As such, we argue it's morally impermissible unless the person is not autonomous,
so they're incapable of consenting and the cutting is medically necessary and so
cannot ethically be delayed until the person could consent on their own behalf.
So that's my ethical standpoint.
From a social psychology perspective, I have a different goal, which is to try to understand from the perspective of practising communities,
why it is that they value certain genital modification rights.
And so throughout this talk, when I try to present reasons for modifying the genitals of a child,
it's not because I think that those reasons necessarily justify the practise,
but rather it's because, again, I'm trying to help explain the practise from the perspective of those who value value these rituals.
I think this is important even from a normal.
Or public policy or advocacy perspective, because even if you're normative goal is to discourage genital cutting of girls,
let's say it requires that you have an accurate understanding of the complex socio cultural backdrop of those practises.
It's not enough to rely on stereotypes or bumper sticker slogans or the sorts of things that activists often
appeal to in creating an oversimplified mental image of what people think female genital cutting involves.
Because if you rely on those over simplifications, your your policy may misfire.
You may come up with ineffective interventions interventions that have harmful side effects for the communities concerned,
leading to stigmatisation of practising communities,
often racially biased interpretations of the legality of genital cutting, unjust treatment of marginalised groups.
And this can lead to loss of trust, cooperation and exacerbate us versus them kind of thinking.
So just to clarify again in trying to understand practises, I'm not thereby assuming that they can be justified, morally speaking.
I do think that morally decent,
reasonable people who interact with particular social structures and incentives can engage in what others may see as clearly bad or immoral behaviour.
Not just outsiders, of course, but also dissenting insiders.
It's always important to remember that communities are not homogeneous, but rather they are heterogeneous.
And within cultures where genital cutting is the dominant norm,
there are often there is always some subset of people who object and are trying to advocate for cultural change.
And again, from my own normative perspective, I support those dissenters.
So some some of how I'm going to do this is to flip the lens, so to speak,
and spend a portion of this talk looking at culturally familiar forms of genital modification that are associated with so-called
Western culture and see if we can try to understand how those practises might look to outsiders who don't engage in the practises.
So that again, we can try to avoid this othering tendency of viewing those who practise female genital
cutting as somehow fundamentally different from us who don't practise female genital cutting.
Now I need to talk about terminology. The set of practises in question go by many different names.
Most scholars now prefer to say female genital cutting.
The law in many countries following the terminology of the World Health Organisation and some advocacy groups is female genital mutilation.
The subset of practises that I'll be talking about today are called by advocates of those practises of female circumcision.
They're trying to draw a parallel with male male circumcision, which they assume is morally permissible.
The recent legal developments that I'll be highlighting concern so-called ritual nicking of the vulva.
This is a practise that's typical and indeed is the most common form of female genital cutting in some parts of South and Southeast Asia.
So the World Health Organisation states that this form of cutting is rare, but it's not rare.
It happens in the case of millions, and it's the most common form of cutting in some parts of the world.
Now, in the cultures that practise what they would call female circumcision on an English translation of the local term,
view it as a complement to penile circumcision. And it's important to stress that in every culture that practises what they call female circumcision,
the same culture practises what they call male circumcision. There are no cultures that practise only female circumcision.
And strikingly, in the case of the South and Southeast Asian cultures,
the penile circumcision is a significantly more substantial than the form of circumcision that is carried out on girls.
Moreover, it's seen as a gender inclusive, right.
In other words, because male circumcision is a valued practise as intuitively might be seen by thinking of the case of Judaism in Judaism.
Male circumcision is the central rite of the religion that's seen as the most important one.
And yet, interestingly, girls are excluded from this valued social institution.
There's no equivalent rate for girls,
whereas some Muslim groups situated in this part of the world regard girls as being as it were deserving of inclusion in a central ritual practise.
And they are therefore also circumcised on an equal basis as the boys.
Now, in many cases, the female procedure does not involve or result in long term visible alteration to genital morphology.
Often there is complete wound. Which makes it very hard to apply the term mutilation to this particular practise.
So again, scholars tend to say genital cutting, which emphasises that this may nevertheless be a traumatic experience.
It involves making, at the very least, an incision into highly sensitive genital tissue, depending on the age of the child.
This may be something that they experience and remember as a sexual intrusion.
The child will inevitably be held down by one or more adults.
And so it should not be trivialised. And but nor does it make sense to say mutilation when there are no alterations
in the long term to the genital morphology and the wound heals completely.
So that's one reason for using the term genital cutting, which is typically what I'll use now.
When I say female genital cutting,
I'm really trying to refer to children who are born with what's called endo sex female traits in contrast to intersex female traits.
So intersex just means in the way that, say, cisgender can be contrasted with transgender, and intersex can be contrasted with intersex.
And it refers to children whose genitalia are easily and ambiguously categorised able as female,
according to the classification classification classification criteria employed within medicine.
These children may, of course, grow up to have some different gender identity than than a female, and so I'm not taking a stand on that.
I'm just referring to to classification of sexual anatomy.
Similarly, MGC, or male genital cutting is really meaning to refer to children who have intersex male traits,
typically upon visibility of of an unambiguous penis, the child will be recorded as male.
And so again, mostly I'll be talking about female circumcision in that in that context.
And I don't tend to call it male circumcision because intersex males who have their penile foreskin removed may grow up to become transgender women.
In fact, in the United States and in Israel,
the vast majority of transgender women will have had part of their penile organ removed routinely when they were infants.
Finally, intersex genital cutting refers to children who have variations in sex characteristics or differences of sex development or intersex traits.
The language here is again contested. No, I'm not implying that intersex persons are necessarily some third separate sex category,
some intersex people will append intersex to a binary sex term,
so they may say I'm an intersex male or I'm an intersex female,
or some intersex people identify simply as intersex and and may have a gender identification that falls outside of a gender binary.
So I'm not I'm not trying to imply anything in particular about how these categorisation should go.
And already you can see that trying to draw distinctions about the legality of and
also the ethical permissibility of performing a medically unnecessary genital
procedure on a child on the basis of how their genitalia are classified vis-a-vis
dominant sex and gender categorisations is going to be hard to sustain.
So here's the historical background that I mentioned earlier.
In November of 2018, the US federal ban on female genital mutilation was ruled unconstitutional by a judge, and I'll explain why now?
Strikingly, just a few months later. This is another article in the New York Times.
You'll see that the practise is now called female circumcision in the headline,
and the Justice Department declined to defend its own law against female circumcision.
It was seen as fatally flawed, and so it took the passage of a subsequent heavily revised law to to replace it quite a bit later, as as I'll explain.
So why did this happen? Why was this law struck down? What's the context and what's the future of law and policy on child genital cutting?
I want to try to just present an overview, a high level overview of.
The the broad structure of what's happening before I get into the details, so there's going to be a lot of points on this slide,
but this is so you can kind of see how everything hangs together all in one go.
Some scholars argue that in 1996, when the US federal law on medically unnecessary female genital cutting of minors was put into effect,
this created a different legal standard for children who have either intersex female,
intersex male or intersex genitalia with respect to genital cutting.
And this different treatment of people on the basis of their sex traits is, of course,
constitutionally prohibited in the United States and in many other Western legal regimes.
And so a zero tolerance policy for female genital cutting of minors,
including these so-called ritual nicking procedures that don't remove tissue where more over these laws do not have a religious exemption.
In other words, it's legally prohibited to perform a ritual neck,
even if it's believed to be religiously necessary by the parents puts considerable legal pressure
on intersex and male forms of genital cutting that are currently considered to be permissible.
And so prominent defenders of male genital cutting of minors, primarily ritual or religious newborn penile circumcision have expressed growing
concern about the legal implications of zero tolerance for female genital cutting.
Increasingly, then in the last five to 10 years,
some of these scholars have been arguing in bioethics and law journals that female genital cutting of minors should actually be legalised.
So rather than thinking of some restriction being placed on male genital cutting of minors, these scholars,
in order to resolve the double standards and be intellectually and morally and legally consistent,
have proposed that protections that are currently in place for girls should in fact be removed.
Again, what they call female circumcision refers to a cluster of practises ranging from ritual nicking,
pricking or partial removal of the clitoral prep use that falls under W.H.O. type for FGM or
partial or total removal of the foreskin or hood is sometimes classified under FGM type one,
a partial or total removal of the labia minora,
which of course is referred to as labia plastic when it's performed on adults, is classified as W.H.O. FGM type 2A.
In any event, these scholars argue that the clitoral glands the part of the clitoris that protrudes outside the body should should not be cut.
So what does this mean for children of intersex traits?
Some intersex females have clitoral surgeries in an attempt to mould their genitalia into a supposedly more feminine appearance.
These surgeries are not medically necessary on any usual sense of that term and so on.
Some views, these surgeries should simply be classified as FGM.
So we need to think about how all this ties together. So, as I mentioned, sex based distinctions are breaking down.
And you now see that there's this new set of lines being drawn between advocates of parental freedoms to modify children's genitals and those who
advocate for children's rights when the when the child is insufficiently mature to consent on their own behalf to be protected from genital cutting.
The Parental Rights Alliance, as I mentioned, is seeking to remove existing protections from girls.
A counter movement has sprung up or gained in some prominence, arguing for a different type of solution to the problem of double standards.
And I consider myself a part of this movement in that all of my academic articles advocate for this position.
I and many others argue that all children who are insufficiently mature to consent on their own behalf,
irrespective of their sex characteristics and irrespective of how harmful or harmless someone thinks it may be to cut their genitals,
have, at the very least a strong moral interest in protection of their bodily integrity and their sexual anatomy from these intrusions.
And what we call genital autonomy, which just means they will have preserved for them in the future.
The ability to make a decision about whether they are comfortable having surgical risk concentrated on this particular sensitive part of their body.
So the claim here is that medically unnecessary non-consensual genital cutting in children should be discouraged,
regardless of the child sex by all appropriate means. Now I just need to emphasise that discouraging a practise does not necessarily mean it
should be criminalised that criminal penalties should be applied to parents or doctors.
Let's say who may perform these practises,
particularly when general awareness of the potential illegality of the practise isn't, isn't, isn't widely there.
There are many levers that people can pull in society to try to discourage problematic practises,
including softer social change efforts like education and consciousness raising and building bridges with practise in communities and so forth.
So I just want in our minds not to leap to the conclusion that if a practise is morally wrong, as I argued,
these practises are that therefore they should be criminalised or be accompanied by criminal penalties.
So this issue of double standards was raised in the early 2000s by Dena Davis, who's a prominent American bioethicist and legal scholar.
And she says federal and state laws that criminalise genital alteration on female minors are so all encompassing in
their language that they cover even procedures that are significantly less substantial than newborn male circumcision,
which is widely considered to be legally acceptable in the United States and indeed in every contemporary country.
Of course, these laws also cover procedures that are significantly more substantial than newborn male
circumcision and these more substantial forms of female genital cutting that involve,
for example, modification of the clitoral glands or the most extreme and invasive form so-called in tribulation.
These are the practises that people tend to think about when they hear the term FGM and it's not an accident.
It's because those who are advocating for laws to criminalise these practises strongly emphasise the most severe forms of them,
and they tend to emphasise the forms of them that are done in septic unhygienic settings under the most coercive circumstances.
And this has been helpful in that it raises attention to the problem and it gets people emotionally invested in trying to address it.
However, it distracts attention away from the very wide range of practises affecting girls that are
relatively similar to practises that Westerners quote unquote engage in that are considered legal.
And so the sometimes racially discriminatory application of law is occluded by
this tendency to emphasise only the most severe forms of female genital cutting.
As Davis argues, a complete laissez faire attitude toward one practise, coupled with total criminalisation of the other,
has troubling implications for the constitutional requirement of equal protection because the laws appear to protect little girls,
but not little boys from religious and culturally motivated surgery.
Again, you'll notice that this kind of language, even from Davis, who is a very forward thinking scholar,
tends to exclude or erase the existence of children with intersex traits.
So here is one representation of possible external genital formations of a child who may have androgen insensitivity.
And on the left hand side, this is the so-called Quigley scale.
It's controversial, but in any event, this is one way of categorising these different genital formations.
The left hand side is is stereotypically or characteristically and no sex male traits.
And the point here is that it is legal in every country of the world to perform a genital surgery on a child whose genitals have this
external appearance with no medical indication and without any reason needing to be given simply upon the request of the parents.
It's also mostly unregulated the surgeries that are performed on children whose genitalia have this appearance.
You don't have to have a medical licence and so forth.
Now, if you moved to the right hand side of the spectrum,
if the child has what's called complete androgen insensitivity and has female genitalia that are
characteristic or endo sex in the very same countries that legally permit the other kind of cutting,
I just mentioned it's a serious criminal offence,
often a federal offence to bring a sharp instrument into contact with genitals that have these characteristics to any extent.
So again, it's not the case that the laws only prohibit what some may characterise as very harmful forms of female genital cutting.
Rather, pricking nicking and partial removal of tissues, including labial tissues, are criminally forbidden in these same countries.
The legal status of intersex genital cutting is contested,
there have been some bills proposed to ban what are called medically unnecessary surgeries on intersex children.
Obviously, we can talk about what medically unnecessary means if you like.
But those proposed bills have been struck down by lobbying from medical professionals and in some parents groups.
So obviously, there aren't just these two six types of genitalia.
Intersex conditions fall along a spectrum in terms of the appearance of the genitalia.
And this leads to a very troubling legal question that has not yet been resolved,
which is at what point does a small penis, which is currently considered to be legal, to cut for any reason?
Again, the parents don't have to explain their reasoning for why they're requesting it.
At what point does that organ become a large clitoris,
which is considered illegal to cut again for any reason other than medical necessity and to any extent?
Now, of course, there aren't just intersex children that are growing in prominence in public discussions,
but also people are, of course, now more aware of people with transgender identities.
There's very many ways of thinking about and characterising what it means to be transgender,
but basically a person's gendered sense of self or gender identity doesn't align with
their birth sex categorisation in a way that's recognised by the dominant culture.
So earlier, I raised the example of female circumcision and explain why I tend not to call it male circumcision.
The reason is because modifications of the penis can affect people who grow up to
have very different gender identities and social locations within gendered space.
And so we shouldn't think of it as something that only affects so-called cis gender boys and men.
People who have non-binary or genderqueer identities as well may be affected by penile circumcision.
Interestingly, there's also very practical implications of removing the penile foreskin for people who adopt
a female transgender identity and who may want to undergo a gender affirmation surgery.
The most common surgery of this kind, leading to construction of the new vagina, involves use of the foreskin.
And if that tissue has been removed, further full thickness skin grafts may have to be taken from the thigh or other parts of the body.
OK. Now I'm going to get somewhat specific here in terms of what exactly is done in procedures that are considered legal in.
Western countries, certainly, but also really other countries as well,
so that you can get a better sense of why it is that advocates of what they call female circumcision think it
should be permitted to perform the type of genital cutting that they endorse on religious or cultural grounds.
Now, male genital cutting is often spoken about or penile circumcision in particular as just a snip.
It's seen as something that is so minor that it shouldn't really come onto the scene in terms of legal prohibition, for example.
Now, when people say this, this is more common in my home country of the United States,
where newborn penile circumcision is a majority birth custom irrespective of, say, religious beliefs.
It's just been a medicalized practise there, and there's an interesting history that maybe we can talk about.
But penile circumcision is minimised and trivialised in the United States, often with this phrase, it's just a little snip.
And I think when people say this, it's because they're imagining an infant's penis, which is very small.
And so in absolute terms, not very much tissue is removed.
But if the same surgery were performed on an adult,
the amount of tissue would be about 200 percent greater and would amount to between 30 and 50 square centimetres of tissue,
which works out to roughly a third of the penile skin system.
So this, depending on your view, might be considered not a very trivial intervention into the body.
The tissue that's removed is not just any tissue,
it's a double layer tissue that has a soft mucous membrane on the inside and an outer protective layer on the outside.
Like the eyelid itself lubricating it has sebaceous glands.
It's hairless tissue, which is partly why it's so useful for skin grafts when it's used for that purpose.
And it's directly anatomically analogous to the clitoral foreskin, which is an extension of the labia and has very similar properties to the labia.
And so this analogy turns out to be crucial for understanding why some people think there's an existing double standard.
So what is currently legally allowed not only in so-called Western countries,
but in every country around the world on non consenting children who have been categorised as male at birth?
This procedure is considered legal when there is no valid medical indication for performing it.
It's widely considered ethical for doctors as part of their professional duties to perform this surgery when it's done for cultural,
religious or any other reason. And again, it's simply upon parental request.
There's no particular reason it has to be given for a doctor to comply with the parents request for a penile circumcision.
I'm going to show some pictures now just to get really specific is are unpleasant,
and some people have been affected by these procedures may find this distressing.
So I want to let you know if you if you need to prepare yourself the first step of a
newborn penile circumcision is to separate the foreskin from the head of the penis,
to which it's adhered at birth by a membrane. In something like the way that your fingernail is, this is adhered to your finger.
These structures will separate naturally over the years, and the foreskin will eventually become retractable.
But at birth, it's it's stuck together.
And so if you want to remove the foreskin at this age rather than in a adult consenting person where they will already have been separated,
they have to be separated with a blunt probe, which is analogous to putting a blunt probe between your fingernail and the butt of your finger.
What that means is that this can be excruciating to the infant, even when pain control is used and in the United States anyway.
Until recently, pain control was not used. It was seen as too much of a hassle for the operator.
Also, in many religious contexts, for example, in Orthodox Jewish circumcisions,
the baby will not have any pain control, but will rather have a drop of wine applied to their tongue.
The next step, depending on what implement you use, is to attach a clamp to cut off the blood supply and hopefully prevent too
much bleeding and tightening it to apply quite a lot of force to the tissue.
And then once haemostasia is achieved, then there's a excision of the tissue.
And so as you can see here, proportionally,
the amount of tissue removed from from this child's healthy genitals is about a third of the skin system of the penis.
Now it's not just any tissue. This has been documented through a number of different studies as being the most sensitive
tissue on the penis to light touch sensation and mild sensations of warmth as well.
And it's not just physical effects. One thing about applying a sort of medical lens here, where we think of body parts and tissues and so forth,
is we forget that a surgery is happening to a person.
Now, the person in this case is probably not forming conscious memories of what's happening.
It's very hard to know and to study what the effects are of this painful procedure affecting the
genitalia of a child on their neurodevelopment because we can't just ask them what's going on.
And and nor has there been a great effort to study brain development changes that may follow from this procedure.
But there is some work suggesting that early, painful experiences can have long term consequences for neurodevelopment.
Now, the manufacturers of this device, which is called a circum strange, have made the straps blue,
which is probably playing on the gender stereotype that blue is for boys.
But I want us to just imagine that instead the straps were pink and this was a
child who was categorised as female at birth and was going to be raised as a girl.
My strong intuition is that if she is healthy, if she has not facing any medical problem,
it is morally impermissible for a doctor to bring surgical instruments anywhere near her genital anatomy.
And I've made this argument in many papers, it's contrary to a doctor's professional duties, I suggest to perform a medically unnecessary surgery,
no matter how slight on the healthy genitalia of someone who's in their most vulnerable possible state, namely a newborn.
Now again, just imagine that instead of thinking of FGM or whatever stereotypes we may have about what that is,
imagine we were instead speaking about cosmetic labia plastic cosmetic labia.
Plastic is something that is common in Western culture. It's something that's widely performed typically on consenting adults.
But of, of course, younger and younger girls are now undergoing maybe a plastic with a with a supposed proxy consent of their parents.
With several hundred cases as young as 13 and 14 on the NHS in the last several years.
Now, it's hard to make a direct comparison here, because if I told you that we were going to think about infant labia plastic,
many people would would respond with incredulity.
They would say, Well,
maybe plastic is something that should be done only voluntarily when the person whose body will be permanently affected has asked for it.
Indeed, according to the American College of Obstetrics and Gynaecology,
and the British equivalent has the same policy maybe plastic in girls younger than 18 years old should be considered
only for those with significant congenital malformations or persistent symptoms caused directly by labial anatomy.
Surgery a surgical alteration of the labia that is not medically necessary in anyone
under the age of 18 is a violation of federal criminal law in the United States,
namely the 1996 FGM law. Now, strictly speaking in England,
because there's no age criterion and the way that FGM is defined includes modifications of the labia that are medically unnecessary.
The vast majority of so-called cosmetic or elective labia passes in the UK should be illegal.
The reason why they're not treated as illegal is because they're primarily sought by people who are considered members of the dominant culture.
If the very same surgeries were sought by people who claimed that they felt they were important for religious reasons or cultural reasons,
they would on a on a racially discriminatory manner or religiously discriminatory manner or manner.
It is discriminatory against immigrant groups be considered to be practising FGM again regardless of age,
because the the UK law doesn't draw an age distinction.
There's a very interesting discussion about how this law was passed and the really explicit racial motives and distinctions that were drawn,
and we can talk about that during discussion. So I think there's some very important implications in thinking about this imagined
procedure of instant labia plastic or just thinking of labia plastic in general.
What it implies is that it's possible to cut or alter and even remove a substantial amount of
genital tissue from a person in such a way that we don't tend to characterise it as mutilating.
We don't think of it as net harmful to the person if they choose it for themselves because we recognise it by their lights, it's a bodily enhancement.
And one person's enhancement, however, is another person's mutilation.
And in particular, if your body has been altered in a way that you don't prefer,
you may consider the very same alteration to your body to be a mutilation rather than an enhancement.
So this highlights the significance of choice and agent relative preferences when people try to come up with medical cost benefit ratios,
as though that should determine the permissibility of a non-consensual genital surgery.
To my mind, they're really missing the point.
The surgery is is not permissible or impermissible based on what the cost benefit ratio is as judged by some third party,
but rather it's permissible or impermissible based on whether the person wants it.
A final point here is you can remove quite a lot of genitals of tissue without causing sexual disability.
A person whose penile foreskin has been removed can enjoy sex and ejaculate and so forth.
And there's tends to be a kind of functional conception of what's characterised as sort of male sexuality that as long as an erection is possible,
there's no problem here. But you might think that the tissue that's removed, which, as I've said,
is analogous to the labia labia of the vulva by some people is valuable in its own right,
and the ability to manipulate that tissue is seen as important for their sexual experience.
And so although you can enjoy sex with this tissue removed,
it doesn't mean that that that it's therefore ethically unimportant that the tissue has been removed.
So if we think about what's wrong with infant labia plastic, which I stress is illegal, a doctor who performed an infant,
maybe a plastic would lose their licence and be arrested for performing FGM is not that it's harmful.
Many people undergo labia plastic, and they think it causes a net benefit.
The reason it's wrong is because it's done without the consent of the affected person.
It affects them for their whole life. The tissue can never be regrown,
and it affects them in a part of the body that virtually every culture characterises as especially private
and personal and intimate and related to the person's sense of self and sex and sexual identity and so forth.
And so this isn't analogous to, for example, removing a mole or something in the way that some people may propose.
Now, against this view, somebody might argue that actually there are medical reasons for performing labia plasticity in infancy so that it's not a
direct comparison to say it should just be left to the the the the affected person to make in their in their older life.
This argument is very commonly made in favour of why intersex genital surgeries supposedly should be performed before consent is possible.
And it's certainly used in the case of intersex male surgeries as to why they should be performed before consent is possible.
So here are some common arguments for why penile circumcision should be performed in infancy rather than leaving the decision to the affected person.
This comes from this article. These authors argue that infinity is an optimal time for clinical circumcision because infants low mobility,
as you saw they can be strapped into a circum strain facilitates the use of local anaesthesia.
Sutures are not required. Healing is quick. The cosmetic outcome, as judged by the surgeon or the parents, perhaps is usually excellent.
We don't know how the child will view that cosmetic outcome. Costs are minimal and complications are uncommon.
Whereas if you wait until adolescence or adulthood, the person may have a fear of pain.
Time off work or school will be needed. Healing is slower and so forth.
So let's just use these arguments and apply them to the case of infant may be a plus.
Again, this is FGM type two A.
Imagine that we said, well, it's easier to make sure she keeps still, because as an infant, she'll have lower morbidity.
She won't remember it. That's a common claim that's cited as an advantage of performing neonatal penile circumcision.
It'll heal faster. That's probably true. It's cheaper and less risky at this age.
That may be true. Sometimes you'll see the claim that future sexual partners may prefer someone who has a genital
modification and that therefore it's permissible or prudent to perform the surgery in infancy when,
quote unquote, they won't remember it.
Obviously, people have different attitudes toward what their preferences are for whether their partner should have modified or unmodified genitalia.
So even if it's a dominant custom, you can't predict any particular sexual partners preferences.
It might even be claimed that removing the labia has health benefits.
It's easier to keep the vulva clean because there's less moist tissue to trap bacteria.
This is again a common refrain in the United States regarding penile circumcision.
It's less common in the UK, where it's understood that the health benefits are mostly trivial.
Fewer labial injuries during sex. Lower risk of labial cancer.
She won't have to take time off work or school, as we just saw in the previous slide.
So all those arguments might be true.
It might be medically better to perform a labia plastic in infancy rather than in adulthood, and so you can't make a direct comparison.
But what I would argue is that all of those considerations are morally irrelevant because the baseline presumption should
be that you must not interfere with the sexual anatomy of a non consenting person unless there is a medical emergency.
And the reason for that is that it's her body and it's a special part of her body, and therefore it should be her choice,
irrespective of relative risk profiles that could be documented for infancy versus later in life.
That's my view. So I just want to wrap up here by drawing a distinction between harmfulness and wrongfulness.
I think you can wrong a person without necessarily harming them,
and you can harm someone without running them if you accidentally bump into them on the street or something like that.
So I'm going to come back to the legal questions.
But Labia Plast is morally impermissible in young girls, not because of any empirical facts having to do with the risk of surgical complications.
You don't have to look up any medical studies to find out what the risk of complications is to make an ethical judgement about infant labia.
Plastic doesn't doesn't rest on the predicted effects on sexual pleasure.
You don't have to play up these ideas that somehow the genital cutting well will disable a person sexually.
Even if it doesn't disable a person sexually. It's still wrong on my view, even if there are health benefits to it.
Given that these health benefits could be achieved in non-surgical ways or in ways that are consensual,
such arguments are, in my view, ethically irrelevant. It doesn't have to do with how much tissue is removed.
Again, in my view, it's a non-consensual cutting of an intimate part of a vulnerable person's body without urgent medical need.
And this, of course, applies to children, regardless of their sex characteristics. Now we have to ask what's so special about medical necessity.
Some people might think that surgery is culturally necessary, or they might think it's religiously necessary.
So why? Why should medical necessity, as it were, have a privilege over these other perceived necessities in creating an exception to the
general strong moral presumption against interfering with another's sexual anatomy?
Well, I think that they are not arbitrarily different from each other.
Medical necessity is based on values that are universally shared across cultures and metaphysical belief systems,
so almost everybody puts a very high value. You are not dying prematurely. Preserving core bodily functions,
avoiding serious disability and alleviating other direct threats to well-being that are that are recognised as such robustly across time,
culture and circumstance. And what that means is if somebody underwent a medically necessary alteration to their genitalia,
it's unlikely that they will ever come to a view according to which they even could conceive of that as a moral wrong done to them.
Whereas that is not true for surgeries that are performed on the basis of beliefs,
norms and values that are in fact highly variable and contested and different between communities,
and are the sorts of views that people often change their minds about in modern,
multicultural societies where people have access to the internet and their future values cannot be controlled.
And so imagine that if female genital cutting, even a supposedly minor form is done on the basis of the parents religious beliefs,
those who advocate for female circumcision think it is a form of discrimination against them that they are not allowed to perform female
circumcision for sincerely held religious reasons when other groups are able to perform male circumcision for deeply held religious reasons.
And and I'll explain why that argument is correct in the sense that they are being discriminated against.
But morally speaking, I still think it's wrong to perform genital cutting on someone who can't consent for religious reasons, and I'll explain why.
This is a quote from a survey of the WD Bora, which is a Shia Muslim sect that performs both male and female circumcision,
as they say, in most instances, the process involves the removal of a pinch of skin from the clitoral hood.
Between the ages of seven or between six and 12, they point out that the Holy Book the Quran does not mention female circumcision,
but a secondary source of Islamic jurisprudence does. The same is true for male.
Circumcision is not mentioned in the Quran, it's mentioned in secondary sources.
I'm realising now that I'm probably going to be over my time, and so I have to skip through the next few slides in order to draw this to a close.
Very briefly, the argument that because something isn't in the Quran, it therefore isn't religious is not a reasonable view.
Many practises are not explicitly listed in the Quran, such as praying five times daily and so forth,
but they're recognised to be religiously obligatory for devout Muslims.
OK, so what happens is if your body has been permanently modified or somebody cut your clitoral foreskin on the basis of their religious beliefs,
and then you grow up to not share those religious beliefs, it's reasonable for you to feel that you've been violated in some way.
And I want to share some someone's story to that effect. This woman writes a member of the deity Bora.
As the years ruled by attained puberty and after experiencing my first menstruation, I became aware of my sexuality at this point of time.
My second eldest sister, in order to give me an understanding of sexual knowledge, gave me a book to read.
After reading that book, the full impact and realisation of that awful, painful and life-changing procedure,
which I was made to undergo at the innocent age of seven years dawned on me.
I was privately distraught and enraged to learn that I had been robbed of my full feminine rights to sensuality and sexuality.
This feeling disturbs and traumatises me, and feelings of inadequacy and incompleteness remain with me even till today at the age of sixty one.
After making a private self-examination, I found that the prep use for foreskin of my clitoris had been cut off.
What's striking about this example is I see dogs here, so OK, that's my movement, I got to finish up.
The woman had a change in mind. Sorry, but it wasn't. I wasn't.
I wasn't. I wasn't sure if you had lost your internet or had lost my internet, and I thought, Oh, come back into the room to check it out.
So I think we're working that. I wasn't trying to rush it.
No, that's OK. Thanks. Thanks for checking in. And yeah, I'm seeing that.
I'm almost at an hour now, so I'll I'll wrap up the next few minutes.
So this, you know, this person underwent a change in her mind or her perspective.
It's not that she she her body went through some further change.
You know, what happened to her happened her when she was a kid, but when she grew up and gained a different perspective,
she saw that that modification is something that maybe as a child she learnt was beneficial.
Or maybe that she learnt was something that drew her closer to God or made her more connected with her community or her ancestors.
And maybe she believed all of that. But if she changes her mind,
it's not hard to see why the very same body modification can be reframed or be characterised as something that a person is daily disturbed by
because they now carry a scar on a part of their body that they have also been socialised to believe is private and they can never remove the scar,
no matter how, how long they live.
So even in cases with supposedly limited physical physical effects, these symbolic meanings can be disturbing for many people.
For the reasons that I've just just mentioned,
it involves interference with a person's sexual anatomy when they're in a particularly vulnerable state.
It involves exposing them to risk, even if you mean to do only a minor incision.
You may cause nerve damage or the knife may slip and cause more damage than is intended.
And it's rational to prefer that no such risk is concentrated on this part of a person's body, especially when they're healthy.
And again, these procedures are carried out on behalf of reasons which, unlike in the case of medical necessity,
medical necessity, there's a significant chance of adult rejection upon reconsideration.
OK, so I'm in the final stretch here. The first U.S. test case, the one that led to the striking down of the federal FGM law concern,
primarily this woman, Dr. Jonathan Agarwala, who's a member of the be on the Shia Muslim sect.
I just told you about the deputy Boro are mostly based in India and Pakistan,
but there's a global community, including members in Detroit, Michigan, where this case took place.
The alleged cutting here was not done in a manner that is consistent with the stereotype of FGM that is put on the front page of the Guardian.
Rather, this was cutting that was done by a doctor trained in the United States in a clinical setting with pain control and sterile instruments.
Now again, as I've argued, none of that changes the moral permissibility of the procedure because I don't
think that the permissibility rests on the stability of the instruments.
But nevertheless, this is done in a way that's very different from the way that most people imagine the poor a practise what they call Cotner,
which is an Arabic word that means circumcision. It's a gender neutral word, and they practise that on both boys and girls for religious reasons.
Now this next slide, I think I'm going to go through it.
The typical male operation in this case is more invasive than the one for females, but only the female operation was regarded as criminal.
Now, the fact that the practised circumcision on boys and girls alike is something that may seem unfamiliar or striking to many people,
particularly because when people think of female genital cutting,
they think of it as something that's targeted at girls in order to, as it were, control their sexuality or as a means of subordinating them.
And therefore female genital cutting is strongly symbolically linked in the western imagination with patriarchy.
And so this is an area where considerable scholarship over 40 years, but certainly in increasing volume in recent years,
has tried to highlight that this view is at the very least,
an oversimplification of the symbolic meanings and these social functions of female genital cutting where it occurs.
So here are some complications that have been raised in the recent literature.
According to the World Health Organisation, all non-Western associated female genital cutting.
So they ignore things like labia, plastic and so forth.
Is is a form of sex discrimination stemming from patriarchy from the unequal status of men and women in society.
But it's hard to square that with some facts. One is that almost all FGC practising societies also practise MGC under the same conditions,
and for largely similar socio cultural reasons, the inverse is not true.
There are many societies that only cut the genitals of boys, but there are virtually no societies that only cut the genitals of girls.
Now, the reasons for cutting are obviously multidimensional,
but the idea that the point of female genital cutting is simply to suppress the sexuality of the girl.
There's anthropological support for that in certain areas, in particular where infiltration is practised,
which is explicitly about narrowing the vaginal opening to prevent premarital sex.
So of course, it's strongly, physically and symbolically associated with this paradigmatic patriarchal control of women's sexuality.
But that's the least common form of female genital cutting and where it's practised in other groups.
For example, amongst the Cono of Sierra Leone or the Jola of Senegal,
these groups have a relatively liberal sexual attitudes and are not primarily concerned with female chastity or virginity.
For example, women will sometimes take lovers during their initiation ritual, and that's culturally tolerated.
So depending on the group, either the male or the female version of the initiation rate may be more physically severe.
Now, virtually all societies are. All societies are, to some extent, patriarchal and patriarchal to different degrees.
In other words, virtually all societies have some means or another by which they tend to asymmetrically restrict female sexuality by various means.
How is that related to practises of genital cutting? Well, most of those societies do not practise female genital cutting or male genital cutting,
for that matter, or they practise only male genital cutting.
But nowhere are girls selectively targeted, and therefore a empirical association between the degree of gender inequality in
a society and the prevalence of female genital cutting is not well established.
In fact, amongst the most strongly patriarchal societies, according to World Bank analysis and other sorts of indices of gender inequality,
for example, Afghanistan is the most gender unequal society where women are the most strongly oppressed.
These societies practise only male genital cutting.
They do not practise a female genital cutting, and in the male ritual, it's really the male ritual.
That reemphasize is the patriarchal norm because boys undergo a trial of violence in which they have to
prove that their quote unquote real men and adhere therefore to the norms of masculinity in society.
So if patriarchy is a concern, the male right where patriarchal masculinity is passed down each generation is one that should it should be contested.
Now again, from the perspective of the practising communities, genital cutting is typically valued institution.
You might think of it as something like the military. There are all sorts of critiques that could be raised about the military.
For example, it fosters certain sorts of authoritarian hierarchies,
and it's the sort of thing that maybe you would want to argue is a flawed institution.
Nevertheless, from the perspective of the society, it's a highly valued institution and therefore the exclusion of girls and women from
the military is seen as a way in which their lower status in society is reflected.
Similarly, within Judaism, where the main genital cutting ritual is a central custom.
The main right of the religion only boys are as it were entitled to.
Because to participate in this ritual. Whereas girls are excluded.
And so Shai Cohen has argued that it is the exclusion of girls from genital cutting in societies
that practise circumcision of boys that most strongly reflects the lower status of the girls,
not the genital cutting of girls where they are initiated on the same basis as their brothers.
Now, the female genital cutting rituals are almost invariably led by women who are their strongest supporters
and various accounts of false consciousness and brainwashing and so forth could be raised here.
That's a long conversation. But in practical terms, even if you accept that these initiations are happening under non-ideal conditions
where there is gender discrimination in the society as there is in every society,
you have to recognise that the female genital cutting rituals led by women,
the mothers in the grandmothers high status women are often the main site of bonding and the formation of communal networks
that allow the women to therefore have some means of political resistance against male domination in the society.
And so in practical terms, the female initiations that involve genital cutting are often anti patriarchal institutions under non ideal conditions.
And so this leads to is a situation where as the whole global policy stance has
been to criminalise only the female half of what in every context where it occurs,
is is part of a gender inclusive right.
A rite of passage where the boys are also initiated means criminalising women who control and manage those rights.
Meanwhile, men retain their bonding ritual, where norms of toxic masculinity are passed down and also escape criminalisation.
So this is discriminatory and unjust on multiple different levels.
And the point here is that it is not helpful to the women who are being criminalised for carrying
on a tradition that they value in the same way that the men carry on a parallel tradition.
OK. This site is just emphasise again that in the top 10, most gender asymmetrical countries,
according to various metrics where women are the most seriously oppressed,
as you see in the left hand column there, most of them have no form of female genital cutting.
However, all of them have extremely high rates of male genital cutting.
In other words, if there is a statistical association,
it's likely between male genital cutting and patriarchy in terms of the degree of gender inequality,
rather than between female genital cutting and degree of gender inequality.
So here's how this plays out in the case of the Bora, according to Richard Schrader, amongst some Muslim groups,
there is a gender inclusive version of the Jewish Abrahamic Covenant not only the boys, but also the girls are circumcised to use his term.
The procedure for girls amounts to a neck, abrasion piercing or small cut restricted to the female foreskin or prep use.
The custom is less invasive than a typical male circumcision, as routinely and legally performed by Jews and Muslims.
So the same families that practise female circumcision,
for which the Nikola was faced with federal criminal charges, also circumcised the boys more extensively.
Now, recruiters view is if the practise is legal for the gander, why should it be banned for the goose?
And so to follow his reasoning through female circumcision should be legalised.
That's what that's what he argues.
Now, Aaron Chavkin, I have said this sort of reasoning leads to a to a dilemma if male circumcision should be permitted generally and for any reason.
Because in some groups it is regarded as an explicitly religious practise,
then relatively mild forms of female genital cutting that are regarded by some groups as religiously required,
should, by this logic, also be given equal consideration and should be tolerated for all groups,
regardless of the reason so that parents who want to modify their daughter's genitalia without cutting
the clitoral glands should be allowed simply upon parental request in order to achieve sex equality,
according to this view. And this is precisely what defenders of male circumcision have now been arguing,
so Aurora and Jacobs in the Journal of Medical Ethics argue that because male genital cutting is tolerated even when non-consensual.
So too should female genital cutting, they argue. We argue that in a liberal society that tolerates expression of culture or religion in
the manner of male circumcision should also permit what they regard as minor procedures.
Again, the people who undergo these procedures do not always regard them as males.
Making a judgement for someone else about how much harm they're going to experience from having a genital operation is a tricky proposition.
In any event, their justification is this is appropriate because all Western nations, in fact, permit ritual circumcision of men.
I don't know why they say men here. Men are not ritually circumcised.
If you circumcised a man without his consent, it's understood to be a sexual assault and battery its infants who are circumcised,
who are even less able to defend themselves than men. This is not an obscure academic debate, the economists picked up this line of reasoning.
The editors wrote After 30 years of attempts to eradicate a barbaric practise, it continues, It's time to try a new approach.
What they suggest the new approaches that should be tried is to tolerate a legally female circumcision.
And so increasingly, what you're seeing is that the presumed moral and legal acceptability of medically unnecessary,
non-consensual penile circumcision is now being used by prominent legal scholars,
bioethicists, anthropologists and others to justify urgent arguments in favour of what they regard as minor non-consensual female genital cutting.
As Davis concludes, as long as Western countries continue to countenance male genital cutting,
the criminalisation of even the ritual neck cannot fail to dilute the persuasiveness of the official
stance against FGC while carrying the unmistakeable taint of intolerance and double standards.
And as I've been alluding to throughout the talk, it's not just sex based double standards, but race and religious based double standards in practise.
So here's the federal ruling Judge Bernard Friedman struck down the FGM law, making a jurisdictional argument.
He said that the federal government didn't have the authority to pass a law
affecting all 50 states as it concerns what he calls local criminal activity.
And this is a very important point. The local criminal activity in question was this so-called ritual nicking or female circumcision.
So something that's less severe than male circumcision. And he says it's already illegal in the United States because it's a physical assault.
If there's not a valid medical indication and the person can't consent, cutting them is an assault.
And that's true in English law generally,
and so the argument has been made that that applies here in England to circumcision of children of whatever sex.
So the judge avoided confronting the collision at a federal level,
but he passed it down to the states who know if they have a state level law, it will be enshrining different standards for males and females.
The judge was nevertheless aware of the equal protection problem, he says.
As laudable as the prohibition of a particular type of abuse of girls may be.
It does not logically further the goal of protecting children on a non-discriminatory basis.
So my last slide here is the FGM law was reinstated.
It was reworded so that it could be consistent with the Interstate Commerce Clause of the Constitution.
This is a cosmetic thing that was done. It's not really the underlying legal basis for for the law.
The law now makes explicit that pricking the collateral prep use without any removal of
tissue or long term functional damage is considered and defined legally as mutilation.
And it's explicit that there is no religious exception to this.
Even if the parents are devout pricking and control prep use, they will face federal criminal penalties.
So to summarise, I think the future of law and policy is going to really shift from the x axis here,
which is making a judgement about how stereotypically male or female a child's genitals
are in deciding whether it is permissible to modify those genitals medically,
unnecessarily and non consensually over to the y axis.
Where the overriding question should be, is the person sufficiently attired autonomous to choose to have their own sexual anatomy?
That's healthy, modified for reasons that they themselves endorse in the fullness of their adult values and and chosen community and so forth.
So that's why I think this conversation is heading.
I wanted to give you a heads up and I really look forward to our discussion over the time that remains to be.