Published July 3, 2018 Updated January 13, 2021
A few years ago Saving Our Sons published a July 4th article in which author Danelle Day declared that circumcision of minor boys is "certainly illegal in the United States of America." [1]
To support this bold assertion, Day cited the Equal Protection Clause, the 1996 federal FGM law [see updates below], and the Universal Declaration of Human Rights. Let's take a look at these documents to see whether Day's legal analysis is correct.
AMERICAN LAW The Equal Protection Clause is a section of the 14th Amendment to the U.S. Constitution. The clause guarantees all citizens equal protection under the law. [2] Many people believe that the Equal Protection Clause prohibits any law that treats people differently on the basis of sex. It does not. Rather a law that treats men and women differently could be challenged in court, and the court would analyze the law via a legal standard called intermediate scrutiny.
Under intermediate scrutiny "the Court looks to see whether the government action that classifies based on gender does so for an important government purpose, and whether the action taken to further that purpose is substantially related to it." [3]. A Female Genital Mutilation prohibition would pass intermediate scrutiny because various forms of FGM have been shown to cause physical, psychological, sexual, and/or obstetric harm. [4] Unlike circumcision, FGM is not known to provide any medical benefit. An FGM prohibition serves an important government interest by protecting girls from harm. Day claimed that the 1996 federal FGM law "prohibits any genital cutting of any kind - including small pin pricks or nicks - to a minor child or baby under the age of 18, for any reason whatsoever (religious or otherwise) if this minor is deemed to be 'female.'" That is a misstatement of the law. [see updates below]
The relevant code specified which body parts may not be cut: "the labia majora or labia minora or clitoris of another person" under 18 years old. The text of the code does not refer to female or genitals or penis.
The code didn't prohibit all cutting "for any reason whatsoever." It contained exceptions for medically necessary procedures and medical procedures performed on a patient during labor, childbirth, or immediately after giving birth. [5]
Day also demonstrated a misunderstanding of the judicial review process. Even if an FGM prohibition were to fail an intermediate scrutiny test, the law wouldn't be extended to include circumcision. Rather, the court would declare the FGM law unconstitutional and would strike it down. The U.S. Centers for Disease Control and Prevention has released a document promoting the medical benefits of circumcision. The CDC affirms that, "whether to circumcise a male neonate or child is a decision made by parents or guardians on behalf of their newborn son or dependent child." [6] The U.S. supports voluntary circumcision programs in Africa, [7] and Congress passed a law in 2016 that authorized the State Department to protect circumcision from legal threats in Europe. [8] Far from prohibiting circumcision, the federal government supports, promotes, and defends circumcision on three continents.
INTERNATIONAL LAW
Day also appealed to the Universal Declaration of Human Rights, an international treaty. The UDHR states that each person "is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as ... sex..." [9] It should be noted that in ratifying the UDHR, the Senate indicated that the treaty is not legally binding in the U.S.
The UDHR was adopted by the United Nations General Assembly in 1948. It is significant that not one nation voted against the treaty. A total of 48 out of 58 UN members voted in favor, including the United States, the Philippines, and seven Middle Eastern nations where circumcision is prevalent. If the treaty were intended to prohibit circumcision, it is inconceivable that it would have passed without dissent. Like the U.S., the United Nations supports and promotes the circumcision of minors. The UN published a comprehensive 140-page manual on performing infant circumcision [10] and a 48-page manual that describes the various UN programs in support of circumcision. [11] Any notion that the UN is ignorant about the scope of its landmark human rights treaty is ludicrous.
CONCLUSION
Danelle Day concluded that circumcision of minors became illegal on the date that the U.S. FGM law went into effect. As we have shown, that statement is factually false. Day failed to identify a single legal authority that supports her bizarre analysis. Nor did she cite any American court ruling against a trained medical practitioner for a routine infant circumcision with parental consent and no major complications.
The United States and the United Nations fight to end the atrocity of female genital mutilation. And both entities promote circumcision, a preventative medical procedure. Medical professionals perform legal circumcision about 1.1 million times a year in American hospitals, [12] and millions more are circumcised around the globe.
UPDATES
On November 20, 2018 a federal judge struck down the 1996 FGM law as unconstitutional. The judge ruled that Congress does not have the authority to enact an FGM prohibition under the Commerce Clause of Article I. This ruling is not based on the Equal Protection Clause, and the ruling does not say or suggest that it is unlawful for the government to prohibit FGM while allowing the circumcision of minor boys. The ruling does not affect state FGM prohibitions.
On January 5, 2021 President Trump signed the STOP FGM Act of 2020, a new law that restores the federal prohibition and addresses the constitutional issues raised by the court. Sponsored by Representative Sheila Jackson Lee of 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.
RELATED
[1] Danelle Day; "Circumcision and The United States Constitution: Forced Genital Cutting of Minors is Illegal"; Saving Our Sons; July 3, 2015 [2] Technically the Equal Protection Clause applies only to state and local governments. However in Bolling v Sharpe, the Supreme Court held that the Due Process Clause of the Fifth Amendment applies equal protection requirements to the federal government. For the sake of simplicity, this analysis assumes that the Equal Protection Clause applies to the FGM law. [3] "The Equal Protection Clause"; Constitutional Law Reporter [4] Rigmor C Berg et al; "Effects of female genital cutting on physical health outcomes: a systematic review and meta-analysis"; BMJ Journals; Vol. 4, Issue 11; November, 2014
[5] U.S. Code › Title 18 › Part I › Chapter 7 › § 116; Legal Information Institute
[6] "Information for Providers Counseling Male Patients and Parents Regarding Male Circumcision and the Prevention of HIV infection, STIs, and other Health Outcomes"; U.S. Centers for Disease Control and Prevention; August 22, 2018
[7] "Briefing on the 15th Anniversary of the U.S. President's Emergency Plan for AIDS Relief"; U.S. Department of State; May 30, 2018. "We’ve really strengthened our prevention activities, ensuring that boys and young men are circumcised, because that decreases their risk of STIs, but most importantly, HIV, by more than 60%, and we believe that to be lifelong." [8] US HR1150 - Frank R. Wolf International Religious Freedom Act; Bill Track 50". [The] Annual Report on International Religious Freedom ... [will include information about] ... religious freedom violations, including prohibitions on ... male infant circumcision..." [9] "Universal Declaration of Human Rights"; United Nations; Adopted December 10, 1948 [10] World Health Organization and Jhpiego, "Manual for early infant male circumcision under local anaesthesia"; February, 2011 [11] World Health Organization and Joint United Nations Programme on HIV/AIDS; "UN resources on male circumcision for HIV prevention"; 2010
[12] Anne Pfuntner et al; Most Frequent Procedures Performed in U.S. Hospitals, 2011; HCUP; October, 2013
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