Published November 27, 2018 Updated January 13, 2021 In this 7-minute video intactivist scholar and so-called ethicist Brian Earp explained last week’s FGM ruling to the intactivist community. In discussing the decision, Earp made two factual errors.
First, he said that the present case is about a slight nick in which no tissue was removed. The defense has maintained that the procedure involved "just a scraping of the genitalia". [1] But the April 12, 2017 indictment described a 7 year-old victim whose “labia minora has been altered or removed, and her clitoral hood is also abnormal in appearance”. [2] That injury, classified as FGM Type 2, causes significant harm. Apparently Earp took the defense at its word and didn't review the indictment.
Second, Earp seized on a sentence in the ruling that the law doesn’t “further the goal of protecting children on a non-discriminatory basis”. According to Earp, the judge rejected the government’s position because “it’s a sex-specific law”, and only a law that includes circumcision would satisfy “this Equal Protection issue”.
But Earp misunderstood the context of the statement. The judge was referring to a human rights treaty that the government used to justify the law. The judge explained that the relevant section of the treaty is just a general anti-discrimination clause that "calls for the protection of minors without regard to their race, color, sex, or other characteristics". In rejecting the government's justification, the judge found that "the relationship between the FGM statute and Article 24 [the section of the treaty] was tenuous". [3]
The judge never referred to the Equal Protection Clause. He never stated that the FGM law is invalid because it doesn't include boys. Nor did he suggest that an FGM prohibition enacted by a state would be unconstitutional. On the contrary, the judge declared that a federal law is unnecessary because “twenty-seven states have passed FGM statutes”. [4]
Brian Earp would have benefited by reading our November 21 Facebook post. Our fans and followers - and even our adversaries - can trust Circumcision Choice to provide accurate analysis of current events and research.
For more on the Equal Protection Clause, see our July 3 blog post: The United States Constitution and Circumcision.
UPDATE
On January 5, 2021 President Trump signed the STOP FGM Act of 2020, a new law that restores the federal prohibition. Authored by Representative Sheila Jackson Lee (Texas), the bill passed the House by a voice vote, and passed the Senate by unanimous consent. Andrea G. Bottner, a former State Department official, said that the law "will strengthen current law, especially in ensuring that the [Commerce Clause] is explicit." The words circumcision, circumcise(s), male, boy, and penis do not appear in the text.
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[1] Tresa Baldas; "Religious defense planned in landmark Detroit genital mutilation case"; Detroit Free Press; May 20, 2017
[2] U.S. v Nagarwala; U.S. District Court, Eastern District of Michigan, No. 17-20274; Criminal complaint; April 12, 2017 - p 7
[3] U.S. v Nagarwala; Opinion and Order Granting Defendants' Motion to dismiss counts one through six of the third superseding indictment; November 20, 2018 - p 6 [4] Ibid, p 25