Are Baby Boys Entitled to the Same Protection...?

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Are Baby Boys Entitled to the Same Protection
as Baby Girls Regarding Genital Mutilation?

It is not the intent of this article to argue that female genital mutilation should be permitted, nor to judge whether female genital mutilation is worse than routine infant male circumcision. The intent of this article is to force American society, parents, the insurance industry, and the medical community to address the routine mutilation of males, a procedure done for purely cultural reasons on nonconsenting babies. It is the author's position that the routine mutilation of male or female genitalia for other than medical necessity is a violation of basic human rights. A gender-specific law that bans the genital mutilation necessarily violates the guarantee of equal protection of law under the Federal Constitution of the United States.

The North Dakota Legislature was the first in the nation to pass a law banning female genital mutilation. The law became effective on August 1, 1995, and provides that "any person who knowingly separates or surgically alters normal, healthy functional genital tissue of a female minor is guilty of a Class C felony." There is an exception for the surgical alteration to correct an anatomical abnormality, or to remove diseased tissue that is an immediate threat to the health of the female minor.

North Dakota had previously not been a hot bed for the practice of female genital mutilation. Because of the international outcry and awareness of the brutality of some cultures to the genitalia of both males and females, Duane Voskuil, Ph.D., and Jody McLaughlin were successful in obtaining the passage of the first-in-the-nation ban on female genital mutilation. The initial intent was to have a gender neutral bill enacted. Having run against political opposition to a gender neutral bill, the pair found sufficient support to pass a gender specific bill banning female genital mutilation, a rare procedure in the State of North Dakota, and decided to challenge the gender specific law on Federal Constitutional equal protection grounds in United States District Court, for the District of North Dakota.

A lawsuit is currently pending against the State of North Dakota on behalf of a baby boy born after the law went into effect, arguing that the banning of female genital mutilation and not routine infant male circumcision violates the Equal Protection Clause of the Fifth and Fourteenth Amendments of the United States Constitution. Infant males suffer much more systematic and routine mutilation. The following comments will briefly describe the legal analysis under the United States Constitution regarding equal protection of laws in its application to the circumcision issue.

In the State of North Dakota, approximately 80% to 90% of all infant males are routinely circumcised. One of the Plaintiffs is an infant boy born after the passage of the female genital mutilation ban. Had the law been gender neutral, the infant boy would have had the same protection infant females have, and he would now be intact. In North Dakota, as in most of America, circumcision is done purely for social, cultural, or religious reasons on nonconsenting, incompetent babies who scream in protest.

The rate of circumcision in North Dakota is alarmingly high when compared with the rate for Australia 15%, Canada 20% and Denmark 1%. In the United States alone, over 1.25 million infants annually, more than 3,300 infant males each day, one child every 26 seconds, is subjected to the unnecessary, painful mutilation without benefit of medical indication or consent, for purely social or cultural reasons.

Routine male genital mutilation, i.e. "circumcision", as practiced in the United States, began in the late 19th Century to prevent masturbation, which was argued to cause insanity. The rationalizations for routine infant male circumcisions have changed over the years. The current rationalizations include: to make sons resemble their circumcised fathers or peers; to improve hygiene (even though the American Academy of Pediatrics says washing is equally as effective without the inherent risks of surgery); to cure phimosis (a condition that cannot be diagnosed during infancy); to lower the incidence of male infant urinary tract infections (though females have three to four times the number of these infections as males, and no scientific studies show this to be a significant issue because this condition can easily be treated medically); to help prevent sexually transmitted diseases, including AIDS (unproven); and to prevent cancer of the penis (yet Denmark, with a male circumcision rate of less than 1%, has a lower rate of penile cancer than the United States; and as many infants die of circumcision complications as older men die of penile cancer).

Routine circumcision continues in the United States because parents and physicians have not been given adequate information regarding the structure and function of the prepuce. Parents mistakenly believe it is a medical issue and ask physicians for advice. Physicians, who likely have been subjected to circumcision, frequently wish to protect the status quo and financial self-interest, and therefore, do not, or cannot give adequate information to parents.

Although parents have the right to consent to health care procedures for their incompetent children, they do not have the right to consent to elective surgeries on personal whims (the removal of an ear lobe, e.g., would certainly be less damaging to a child and, yet, would certainly be a basis to prosecute a parent for child abuse).

The prepuce is specialized tissue, highly innervated, richly supplied with blood vessels, and uniquely endowed with stretch nerve receptors. The prepuce contributes significantly to the sexual response of the intact male, which can be especially important for sexual satisfaction in the mature male.

The amount of foreskin typically removed during a routine circumcision (more accurately called male genital mutilation), amounts to approximately 50% or more of the skin covering the average adult penile shaft. In the adult male, the foreskin amounts to approximately 12 to 15 square inches of highly innervated tissue.

The infant male prepuce is normally attached to the glans penis at birth, and may not become retractable until teenage years. Infant circumcision traumatically interrupts the natural and gradual separation of the foreskin from the glans penis. Tearing the prepuce from the glans penis, even when not part of an amputation, is considered child abuse by many because it is extremely painful and there is no medical reason for this painful procedure, which harms the glans penis and can introduce infection. Circumcision interferes with the natural, anatomical development of the penis (including that part which is not amputated), since the circumciser tears the prepucial mucosa from the glans penis as part of the amputation. This procedure scarifies, and eventually hardens and desensitizes, the glans penis.

Routine infant male circumcision is a form of genital mutilation which removes a vital, anatomical structure and functioning body part and leaves permanent scarring of the skin shaft and the glans penis. It changes the brain structure by imposing pain on a primary pleasure center. This procedure violates the physician's oath for the care of patients: First do no harm.

The unnecessary mutilation of the genitals of females and males in the name of tradition, custom, or any other nonpathologic reason should not be accepted by conscientious health-care professionals. It breaches the fundamental code of medical ethics. Children too young to give consent must be treated as other incompetent individuals. Elective circumcision procedures should be performed only when the individual affected can give informed consent at the age of majority. Circumcisions done for medical reasons must meet the same criteria as any amputation. If there is a question of medical necessity, the circumcision should only be done upon the appointment of a guardian ad litem and with a Court's permission.

All routine childhood circumcisions, or separations of genital structures in females or males, are violations of fundamental human rights. It is the moral, and often the legal duty of all, but especially professionals, to protect the health and rights of those with little or no social power to protect themselves. A circumcision is an assault on an individual's sexuality, and a violation of his natural right to an intact body.

A law which bans female genital mutilation and allows the routine mutilation of males, which is much more rampant, violates the equal protection clause of the United States.

Equal protection analysis often begins with the explanation offered in the classic article on the subject, Tussman and tenBroek, The Equal Protection of the Laws, 37 Cal L. Rev. 341 (1949). Tussman and tenBroek explained that the fundamental tension in equal protection analysis is that between the pledge of "equal laws" protecting all, and the fact that virtually every law nevertheless treats persons unequally. Nearly every statute commands that some category of persons be treated differently from others, and the equal protection principle does not forbid all legislative classification. The task of the Court is that of distinguishing legislative classifications that violate equality from those that do not.

The question of whether the legislature has denied the equal protection of the laws cannot be answered in the abstract. The Court must always compare the reach of the classification used with the actual scope of the problem at which the law aims. And we can only know what that problem is by examining the actual or purported purpose the law is designed to serve. As Tussman and tenBroek put it, the question of equal protection is a question of the degree of "fit" between the area actually occupied by the "Mischief" aimed at, and that occupied by persons displaying the "Trait" used to define the legislative category.

Unavoidably, however, the "fit" between the legislative classificatory means and the substantive legislative ends, between what the legislature has aimed at and what it has hit, will be imperfect. The Court has determined that permitting legislatures to use some classifications poses a much greater threat to the ideal of equal protection of the laws than permitting the use of others. Much of the work in deciding cases, therefore, tends to occur at the outset of the analysis, in the course of determining what "level of scrutiny" the Court will apply to the law. In part, this inquiry is a matter of how tight the "fit" must be between the harm and the classification before the Court will strike it down. The reason for the adoption of the various levels of scrutiny, however, is the product of social and historical factors rather than the logical relation of means to ends.

Some classifications, for these reasons, are particularly threatening to the ideal of equality before the law. Specifically, the desire to outlaw legal classification by race was the obvious and explicit goal of the equal protection clause. Indeed, the Court's early cases suggested that this was the sole import of the clause. In the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873), competing butchers of the New Orleans slaughter-house monopoly argued in part under the equal protection clause that they had been discriminated against by the grant of an exclusive monopoly to others. Justice Miller for the Court gave that claim short shrift, and "doubt[ed] . . . whether any action of a State not directed by way of discrimination against the Negroes as a class, or on account of their race, [would] ever be held to come within the purview of the [clause]."

There has often been speculation that this limited and hostile view of equal protection was in part the result of the "floodgate" of such arguments the Court worried would be opened by an expansive reading of the command of equal protection. That fear, speculation suggests, was in part dramatized from the Court's point of view by a troublesome claim presented earlier that same term. In Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872), the Court faced a claim that Illinois' prohibition on the practice of law by women violated this "equal protection" idea as well. The Court rejected the claim, and Justice Bradley's concurrence has become famous. "Man is, or should be, woman's protector and defender . . . The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." Id. at 151 (Bradley, J. , concurring).

Although claims of sex discrimination are much more warmly welcomed under the modern equal protection clause, the Court has continued to hold that sex discrimination is different from race discrimination. This continued difference in treatment is in part based on the history of the equal protection clause, but also because the Court has felt that the real differences between the sexes make the blanket condemnation of "strict scrutiny" inappropriate. On the other hand, the dangers that legislatures may often deny equal liberty to persons of both genders based on their sex, often in the guise of granting special benefits to women, has led the Court to reject the relaxed "rational basis" test applied to equal protection claims in the economic realm.

Beginning with Craig v. Boren, 429 U.S. 190, 197 (1976), the Court has held that legislative classifications based on gender are subject to "intermediate scrutiny." As the Court described this approach in Craig, "[t]o withstand constitutional challenge, . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Id. There is some indication that this test is undergoing some at least verbal tightening with the very recent Court decision United States v. Virginia, 64 U.S.L.W. 4638 (June 25, 1996). There, Justice Ginsburg for the Court stated repeatedly that "[p]arties who seek to defend gender-based government action must demonstrate an 'exceedingly persuasive justification' for the action." United States v. Virginia, 64 U.S.L.W. at 4640; 4642; 4643, quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (O'Connor, J.). Chief Rehnquist suggested in concurrence that prior cases have only used this phrase to describe the difficulty of satisfying the intermediate scrutiny standard, and that the majority opinion seemed to make this showing an element of the test itself. Id. at 4640 (Rehnquist, C.J., concurring); see United States v. Virginia, 64 U.S.L.W. at 4643 ("we conclude that Virginia has shown no 'exceedingly persuasive justification' for excluding all women from the citizen soldier training afforded by VMI").

What the recent case also emphasizes, however, is one that must be constantly born in mind. The question is not merely whether the law substantially serves the important government objectives. The question is whether the discrimination the law engenders does so. Thus the Court repeatedly states that for a gender classification to stand, "[t]he State must show 'at least that the [challenged] classification serves 'important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.'" Virginia, 64 U.S.L.W. at 4643, quoting Hogan, 458 U.S. at 724 (emphasis added). The State may not pass this test by simply showing that its law is reasonably designed to serve some important end and does so. The State must show that the discrimination itself is justified, and justified on the ground that the chosen "discriminatory means" themselves substantially serve the important interests alleged in its support.

The gender cases differ from the race cases in another way. This aspect is emphasized by Professor Tribe. See Lawrence Tribe Constitutional Law 1464-68 (2d ed. 1988). Unlike racially discriminatory laws, which are often based on simply hostility, sexually discriminatory laws are often based on or justified by a paternalistic desire to favor or "protect" women. For this reason, gender discrimination suits are often brought by men, and the goal is not to strike down the law but to require its extension to the plaintiffs. These cases include Frontiero v. Richardson, 411 U.S. 677 (1973), decided under the equal protection strand of the Fifth Amendment, in which the Court struck down a legislative presumption that all spouses of males were dependent but requiring all spouses of females to prove dependency. The plurality stated that the scheme was one of "romantic paternalism," and that it operated to "put women not on a pedestal, but in a case." The Court in Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), threw out a section of the Social Security Act that awarded survivor's benefits to widows but not widowers responsible for dependant children. The Court found that the purpose of the law was to enable the surviving parent to remain at home to care for the child, and that in light of this objective the gender-based classification was "entirely irrational." It is no less important for a child to be cared for by its sole surviving parent when that parent is male rather than female."

And in Stanton v. Stanton, 421 U.S. 7 (1975), a case with interesting implications here, the Court held that Utah could not impose a parental support obligation for daughters until age 18, but for sons until age 21. "[A] child, male or female, is still a child . . . If a specific age of minority is required for the boy in order to assure him parental support while he attains his education and training, so, too, it is for the girl. To distinguish between the two on education grounds is to be self-serving. . . [and] coincides with the role-typing society has long imposed."

In California v. Goldfarb, 430 U.S. 199 (1977), the Court invalidated a Social Security provision that paid survivor benefits to widowers only if they could prove substantial reliance on the deceased's income, but to widows without that proof. The Court stated that administrative convenience and sexual stereotyping were the only bases for the legislative presumption. Justice Stevens emphasized in his concurrence that unexamined and unjustified assumptions are particularly likely to be the real reason for the distinctive treatment in gender cases. "It is fair to infer that habit, rather than analysis or actual reflection, made it seem acceptable to equate the terms 'widow' and 'dependent surviving spouse.' That kind of automatic reflex is far different from...a legislative decision to favor females in order to compensate past wrongs."

Professor Tribe emphasizes that blacks were the intended beneficiaries of the equal protection clause because they were a subjugated race. He argues, however, that the fact that men are often the beneficiaries of decisions striking so-called "benign" sex discrimination "is immaterial to choosing the proper standard for evaluating legislative reinforcement of restrictive sex roles. For while our laws and institutions no longer value distinctive race roles, they still promote -- with vast popular support -- restrictive gender roles." Tribe, supra at 1569. Men in these cases can legitimately argue that these popular presumptions and prejudices burden the liberty of everyone, men as well as women, and that breaking down legislatively-reinforced gender categories offers "enhanced liberty opportunity, and power for both sexes." Id. at 1570.

It is, in part, the very popularity of gender-based prejudices that makes them the likely source of gender-biased laws. Justice Stevens has several times emphasized this, stating that it is usually "habit rather than analysis" which underlies such differential treatment of the genders. But the mere reinforcement of "habit" or prejudice is not by itself an "important governmental interest" that the State may pursue, let alone by the sort of explicit gender-based differential treatment found here. No doubt the Court in Bradwell thought it obvious that social habit or prejudice was sufficient to allow Illinois to prohibit women from practicing law. But that is no longer an acceptable reason for gender-based classifications.

It is the discrimination, not the law, that must be "substantially related" to the important interest in suit. Plainly, the State of North Dakota has a powerful interest in preventing the genital mutilation of minor females. That is not enough, however, to justify explicit gender discrimination. The discrimination itself must substantially serve the State's important interest. The discriminatory denial of equal protection against this procedure to infant males does nothing whatever to advance the State's interest in protecting females.

The State of North Dakota, of course, will disagree. But assuming the truth of the factual claims that the routine genital mutilation of boys has no more medical justification than it would have for girls, all of the State's justifications must draw support from precisely the habits and prejudices that it is the function of gender discrimination scrutiny to question. It will not do, for example, for the State to justify this discrimination on the ground that widespread popular support for the genital mutilation of boys and not girls made this law politically attractive. To allow the legislature to reinforce gender-based prejudices based on the widespread nature of gender-based prejudices is the most blatant sort of bootstrapping. See esp. Stanton v. Stanton, 421 U.S. 7 (1975). The point of heightened scrutiny is to put such "habits" of thinking and "automatic reflexes" themselves under scrutiny. The fact that the discrimination here reflects and reinforces such unquestioned stereotyping is a reason to strike this law down, not to uphold it.