Federal Judge Rules FGM Prohibition Unconstitutional

The United States Congress recently created legislation to protect girls and women from female genital mutilation (FGM), a form of physical, sexual and social abuse, largely accomplished by religious and cultural bullying.  But last week a federal judge in Ohio ruled that the ban on female genital mutilation is unconstitutional, applying an apparent religious freedom and state authority context.  The New York Post reported that District Judge Bernard Friedman said “’Congress overstepped its bounds’ by outlawing the practice known as female circumcision, or cutting. Friedman said it was up to states rather than Congress to regulate the practice.” 

Because FGM is a surgical genital wound, doctors were indicted with mutilation and conspiracy charges for performing the surgery, despite their awareness and knowledge of the federal prohibition.  The ruling will likely face appeal.

No child in the world should ever be subject to FGM. A horrendous form of domestic violence that enjoys widespread cultural acceptance, FGM is a violent cultural practice of physical mutilation of girls by painful genital cutting that continues its repressive physical, psychosocial and psychological effects for a lifetime. See Alexi Nicole Wood, A Cultural Rite of Passage or a Form of Torture: Female Genital Mutilation from an International Law Perspective, 12 Hastings Women’s L. J. 347, 362-67 (2007) (discussing those immediate and long term effects as international human rights violations).  The Convention on the Rights of the Child prohibits it because of it does not promote the health of children. 

Much of the seemingly social attachment to FGM is long-standing gender repressive cultural practice, implicating the conflict between the recognition of international human rights and the principle of cultural sovereignty, with social and political implications.   See Leigh A. Trueblood, Female Genital Mutilation: A Discussion of International Human Rights Instruments, Cultural Sovereignty and Dominance Theory, 28 Denv. J. Int'l L. & Pol'y 437, 441 (2000). Scholars have asserted the adoption of measures to fight FGM by shifting the culture of female circumcision toward actively involving African and Middle Eastern women in the effort.  See John Tochukwu Okwubanego, Female Circumcision and the Girl Child in Africa and the Middle East: The Eyes of the World Are Blind to the Conquered, 33 Int'l Law. 159, 159-60 (1999).  Yet, cultural justifications for its continuance are offered, despite its enormous negative health implications, and that is what apparently is occurring in the current federal case. 

Rather than cultural or religious or gender oppression, children deserve protection within their families and their governments from female genital mutilation.