Krishnan, Ashwina --- "Reframing The Discussion On Female Genital Cutting: An Analysis Of The Arguments For And Against The Abolishment Of Femital Genital Cutting" [2021] UNSWLawJlStuS 17; (2021) UNSWLJ Student Series No 21-17

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REFRAMING THE DISCUSSION ON FEMALE GENITAL CUTTING: AN ANALYSIS OF THE ARGUMENTS FOR AND AGAINST THE ABOLISHMENT OF FEMITAL GENITAL CUTTING

ASHWINA KRISHNAN

I INTRODUCTION

Female genital cutting (FGC), often times referred to as female genital mutilation (FGM), is a practice that is highly contentious. While some believe it to be an abhorrent practice that violates women and children’s rights and by virtue of this should be abolished, others consider the practice to be an integral part of their culture. The reasons for the continuation of this practice are varied and often dependent on the contexts within which FGC is practiced. For instance, some believe that FGC is prescribed by their religious scriptures whilst others consider it to be a coming of age ritual. Whether or not this practice is a cultural or religious phenomenon continues to be a point of contention. Nevertheless, many in the international community have called for this practice to be abolished deeming it a human rights violation due to the purported negative impact it has for young women and children. The debates that have ensued in relation to whether FGC is a human rights violation or an acceptable cultural practice have often occurred within the context of the controversies between universalism and cultural relativism,^[1] with many arguing against the concept of cultural relativism on the basis that FGC is so barbaric that it should not be permitted, in spite of the justifications that may arise from viewing this issue from a culturally relativist standpoint. This paper examines the arguments made for and against the abolishment of FGC and seeks to answer the question: is the move to abolish FGC a form of cultural imperialism or a statement of a universal human rights norm? It does so by reviewing the impact of both the practice of FGC and its abolishment on women and children and by juxtaposing the attitudes expressed in relation to other similar practices that are accepted in Western societies. The essay ultimately argues that the debate should in fact be reframed and analysed from a children and women’s rights focused perspective.

II TERMINOLOGY

This paper will firstly address the various terms that signifies the practice of female genital cutting. Initially, the practice was referred to universally as female circumcision, including in medical literature.^[2] However, in 1979, the term “female genital mutilation” or FGM was coined which imbued the practice with negative connotations and distinguished the practice from male circumcision.^[3] The coining of the term FGM was intended to ‘aptly capture the gruesome and harmful nature of the procedure’ and also to effectively designate the practice as a human rights violation,^[4] thus making the distinction between circumcision as it is practised on males and on females.^[5] The terms FGM itself is a point of great contention ^[6] as many who have undergone the procedure themselves may consider it to be demeaning.^[7] However, the alternative of utilising the term female circumcision can be considered to many as a means to trivialise or normalise the practice.^[8] The term female genital surgery was also used interchangeably; however, this term remained unpopular due to its implication that the practice is ‘medical in nature.’ ^[9] This paper will refer to the practice in its most literal sense, that is, female genital cutting or FGC.

III CONTEXT

According to UNICEF, ‘at least 200 million girls and women have undergone FGM’/C globally.^[10] While the prevalence of the practice itself varies geographically,^[11] According to the World Health Organisation (WHO), a majority of those who have undergone female genital cutting go through it prior to turning fifteen years old.^[12] The common view held in most Western societies is that FGC not only embodies a severe human rights violation, but is also a means to ‘suppress women’ and to make women more subservient to their ‘future husbands.’^[13] This view is widely accepted by the international community as seen by the various calls to end female genital cutting.^{[14] [15]} The UN has further regarded the elimination of female genital mutilation as a means to achieve gender equality and empower all women and girls, as per its sustainable development goal five.^[16] This view is expounded on the premise that FGC ‘violates the right to physical integrity of the person’^[17] and constitutes a form of violence against women and children. ^[18] Many have come out to criticise this view stating that it is in fact primarily underpinned by ‘cultural bias’ rather than objective facts.^[19] Accordingly, accusations of Western ethnocentrism clouding the judgement of those calling for the abolishment of FGC have been meted.^[20] This line of argument is further justified by the fact that the ‘”zero-tolerance” stance on FGM...[has not been] applied consistently to analogous practices that happen to be more popular in Western countries,’ such as elective cosmetic genital surgeries, intersex genital “normalisation” surgeries, male circumcision ^[21] and genital piercings. It is posited that these practices are presumed to be ‘permissible’ on the basis that it is ‘more familiar to a Western mindset’ and is therefore not held to the same standard as that of FGC.^[22] While this view may be criticised for minimising the impact of FGC, a careful analysis into these practices deemed “acceptable” and the potential harmful impact they may have to those who undergo them shows that they share many comparable features with FGC,^[23] thus labelling the calls for abolishment of FGC a form of cultural imperialism. The challenge this argument poses to the universality of the norms proscribing FGC cannot be overlooked and will be examined further in this paper.

IV WHO’S DEFINITION OF FGC

The most widely accepted definition of FGC is put forth by WHO, as follows:

‘all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.’^[24]

WHO has also categorised the practice into the following types:

• ‘Type 1: this is the partial or total removal of the clitoral glans (the external and visible part of the clitoris, which is a sensitive part of the female genitals), and/or the prepuce/ clitoral hood (the fold of skin surrounding the clitoral glans).

• Type 2: this is the partial or total removal of the clitoral glans and the labia minora (the inner folds of the vulva), with or without removal of the labia majora (the outer folds of skin of the vulva).

• Type 3: Also known as infibulation, this is the narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the labia minora, or labia majora, sometimes through stitching, with or without removal of the clitoral prepuce/clitoral hood and glans (Type I FGM).

• Type 4: This includes all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.’^[25]

This definition and categorisation of FGC practices has drawn various criticisms. The main criticism of WHO’s classifications is that the lumping together of the various and disparate practices makes generalisations of the practice of FGC and conflates the issue insofar that it does not acknowledge that the impact for each categories of FGC would differ.^[26] The “catch-all” definition of Type 4 is also criticised for being too broad and for its specific application only to cultural practices in non-Western countries, in spite of its definition encapsulating other analogous Western practices. In categorising FGC in this manner, WHO allows for all types of FGC to be regarded as ‘ipso facto condemnable.^’[27] The common factor of these practices, no matter how wide-ranging and disparate thus becomes that it is performed on women and girls, which leads to the false presumption that girls are ‘always harmed by genital surgery.’^[28] WHO’s classification is therefore, at best ‘inaccurate’ and at worst ‘intolerant’ and ‘intellectually lazy and misleading.’^[29]

V ORIGINS

Another area of contention is the origins and reasons for continuing the practice of FGC. While the notion that the practice is undertaken to curb women’s promiscuity and to ensure fidelity is widely accepted and often advanced by WHO, ^[30] in some cases, the motivation for cutting has little to do with curbing sexuality.^[31] This is again seen as an over-simplification, on the part of WHO, of a complex and multifaceted practice. There are a wide variety of reasons cited as to why FGC is undertaken including religious beliefs, ritual purity/chastity, hygiene and even cosmetic purposes.^[32] While it is conceded that in some cases FGC may be practiced as a means of protection of virginity and purported control of lust, it is important to note that FGC is not solely undertaken for this purpose. This a particularly important point to consider given that the calls for abolishment are generally prefaced on the basis that FGC is a practice utilised as a means to control women’s sexuality and to establish women as subjugate to men.

Attributing every practice of FGC to gender inequality is a gross over-simplification of its social and cultural functions within the societies that it is performed in.^[33] It is further integral to understand the various reasons for why FGC is undertaken within different cultures as these disparate reasons result in the variety of ways that the procedure itself is carried out, particularly, variations in the ages ‘of girls or women that undergo the procedure, the accompanying rituals, the surroundings in terms of hygiene, the skills, qualifications and gender of the circumciser.’^[34] While WHO estimates that majority of the procedure are carried out on children under the age of fifteen, FGC may in fact be carried out ‘at infancy, before puberty, at puberty, with or without initiation rites, upon contracting marriage, in the seventh month of the first pregnancy, [or] after the birth of the first child.’^[35] To conflate these varying reasons and origins of the practice thus negates the myriad health consequences^[36] as well as psychological impact each FGC procedure has on women and children. For instance, some cultures consider the ‘external clitoris’ to be a sign of ‘androgyny’ rather than a symbol of ‘female sexuality’ as it is perceived in the West. As such, removal of the clitoris is viewed within some cultural contexts as both ‘feminizing and an affirmation of “matriarchal power”’^[37] thus holding a different psychological impact altogether.

While the validity of claims that FGC is rooted in religious belief is still debated, it is important to note that if FGC is sanctioned by religion and/or is part of one’s religious practices, then it can be presumed that ‘there is a prima facie case of right to religion.’^[38] This of course does not negate that religious beliefs cannot be utilised as a shield against practices that are intrinsically harmful, however, whether all “types” of FGC are in fact intrinsically harmful remains a point of contention.

VI RELEVANT INTERNATIONAL INSTRUMENTS ON FGC

Many international instruments, even if they do not explicitly forbid FGC, have articles that can be interpreted to do so. For instance, Article 2 of the Convention on the Elimination of Discrimination Against Women (CEDAW) stipulates that State Parties should eliminate discrimination against women by taking all ‘appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practice which constitute discrimination against women.’^[39] Article 5 similarly states that all state parties should take any necessary steps to eliminate ‘practices that are based on the idea of the inferiority or the superiority of either sexes.’^[40] Some argue that FGC should fall under these practices that should be abolished on the basis that it is ‘exclusively performed on women,’ and is thus ‘prima facie discriminatory.’^[41] However, if the view that FGC and male circumcision is both similar in nature, the argument that FGC is discriminatory would not stand. Relevant regional instruments on the other hand are more explicit in their prohibition of FGC. For instance, the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol) prohibits all forms of FGC under Article 5, including medicalisation.^[42] Article 38 of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) on the other hand, explicitly criminalises a range of practices including ‘excising, infibulating or performing any other mutilation to the whole or any part of a woman’s labia majora, labia minora or clitoris,’ rather than utilising the umbrella term of FGM/C.^[43] The positions put forth in these instruments are unambiguous.

Bearing in mind that a majority of the procedure is undergone by children, the Convention on the Rights of the Child (CRC) is also a very important instrument. Article 24(3) of the CRC requires state parties to ‘take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.’^[44] Article 19(1) also imposes a positive obligation on State Parties to protect children ‘from all forms of physical or mental violence, injury or abuse.’^[45] These articles again do not explicitly outlaw FGC but it is widely accepted that these articles implicitly prohibit the practice of FGC on the basis that it is a violation of children’s rights.^[46] Similarly, the African Charter on the Rights and Welfare of the Child (ACRWC) does not explicitly prohibit FGC but does prohibit ‘any custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter’ which includes that all actions concerning children be undertaken with primary consideration being given to the ‘best interests of the child.’^[47] While some may argue that this in turn implies that as FGC is ‘harmful to children,’ the practice runs afoul of the “best interest of the child” principle,^[48] however, what constitutes the “best interests of the child” remains subjective.

VII IMPACT OF FGC ON WOMEN AND CHILDREN

The criticisms of FGC often come under three broad categories, that the ritual violates women and children’s rights to ‘bodily integrity,’ that it ‘perpetuates gender inequality’ and that FGC has serious ramifications on women and children’s health and mental wellbeing.^[49] Being that the health impact FGC has on women and children can be objectively observed, it poses the ‘strongest “case” against’ the continuation of the practice.^[50] As per WHO’s fact sheet, the health consequences of FGC can range from menstrual problems to death.’ ^[51] Some of the causes named by WHO can also be attributed to the way in which the procedure is performed in certain contexts. According to Muteshi et al, a ‘vast majority of girls’ undergo the procedure with no ‘anaesthesia or analgesia using non-sterile instruments such as scissors, razor blades or broken glass’ with the minority of these procedures having been medicalised to minimise any health risks.^[52] Muteshi et al further states that the consequences are both similar for the various types of FGC, as defined by WHO, but differ in severity.^[53] There is thus some consensus that particular types of FGC results in more harmful health consequences and accordingly, other types of FGC lead to lesser health consequences. In light of this, the call to abolish FGC is often criticised on the basis that this view does not differentiate between the various types of FGC and instead calls for the eradication of all types, which does not take into account the lesser health consequences of more moderate forms of FGC. For instances, the procedure for FGC in many Muslim communities, particularly in parts of Indonesia and Malaysia, involves ‘nicking the clitoris [or clitoral hood] with a sharp instrument to cause bleeding but no permanent alteration of the external genitalia’ and as a result when a hospital based study was conducted in Malaysia, the findings where that there were ‘no clinical evidence of injury to the clitoris or the labia and no physical sign of excised tissue.’^[54] This thus undermines the call for eradication, at least, while it encapsulates all types of FGC.

In spite of the above, all forms of FGC continue to be viewed as impermissible by the international community.^[55] This view can perhaps be justified by the pain and trauma associated with the procedure, or the psychological impact of FGC. This justification is not fool proof as more superficial types of FGC (such as pricking), particularly if undertaken under anaesthesia, can negate the pain and traumatic side-effects of the procedure.^[56] On the other hand, in the context of when FGC is consented to by an adult woman who is choosing to undergo it upon her own free will, pain can be an important and necessary part of the cultural ritual. For instance, Earp notes in his paper that the ‘Rendille [women] of Kenya...reject the idea of using anaesthesia when being excised’ as a means of demonstrating their ability to withstand pain. FGC in this context is viewed as a demonstration of ‘maturity’ as being able to tolerate undergoing FGC without anaesthesia would in turn be viewed as a woman’s ability to undergo the pain of childbirth.^[57] This is not unlike many women in the West who choose to undergo the pain of childbirth sans epidural. In the context of FGC carried out on adult women, there is thus a juxtaposition of who can consent to pain and who cannot, on the basis of cultural lines.

The medical arguments against FGC are also weakened by the comparison of less invasive types of FGC to the practice of male circumcision (MC). Many justify MC and oppose FGC on the basis that the former may have health benefits while the latter has none. However, this view neglects that the foreskin can play an important role in the health of young boys and men, including that it serves a ‘protective function’ for the penis ‘to irritants from the environment, such as urine and feces in the diapers of the youngest of boys, and to rubbing against clothing thereafter.’^[58] There are also a range of ‘complications that could arise from male circumcision’ that are not dissimilar to that of FGC which is again ignored,^[59] thus begging the question why should FGC be abolished MC continues to take place?

Another common reason cited for eradicating FGC is on the basis that FGC ‘violates women's rights to sexual fulfillment’ due to its interference with the clitoris.^[60] This can again be compared to MC which ‘(eliminates) all sexual functions and related erotic activities that involve manipulation of the foreskin itself.’^[61] Furthermore, there are many studies that counter the argument that FGC impedes on a woman’s ability to achieve orgasm or hinders their libido.^[62] On the flip side, some studies have found that FGC instead leads to increased promiscuity ^[63] and that some types of FGC, particularly those involving the removal of the clitoral hood actually lead to ‘maximum exposure of the clitoris’ thus allowing women the experience of ‘multiple, quicker, and more intense orgasms.’^[64] It is thus important to note that less invasive forms of FGC do not in fact eliminate a woman’s ‘capacity for orgasm.’^[65] Even with FGC procedures involving the removal of the clitoris, there is no consensus that such procedures can impede on a woman’s ability to achieve orgasm in every case as the psychosexual aspects of sexual enjoyment plays an important function in climax, even more so than the clitoris.^{[66] [67]}

It follows from the above that where FGC is undertaken with the informed consent of an adult wishing to undergo the procedure, that the psychological impact can also be mitigated. This is not to say that for women and children who have undergone forced FGC, the experience would not have had a traumatic impact. In fact, many report experiencing ‘psychological and psychosomatic disorders such as disordered eating and sleeping habits’ as well as posttraumatic stress disorder, anxiety, depression, and memory loss associated with FGM/C.^[68] However, on the other hand, the calls for abolishing FGC can have similarly ‘adverse psychological effects’ on women who have already underwent FGC.^[69] There should thus be a clear line established distinguishing consensual and forced FGC.

VIII IMPACT OF THE INTERNATIONAL STANCE ON FGM

In analysing the merits of arguments for and against the eradication of FGC, it is also essential to understand the many potential consequences of the anti-FGC stance. While, not undergoing FGC in itself could have particular consequences for girls and women in certain contexts, such as social ostracism,^{[70] [71]} the consequences of the stance adopted by the international community that has led to a variety of prohibitions, both legislative and political, are far more insidious. For instance, due to the hard line, no tolerance for any type of FGC view adopted, there is also a prohibition on medicalisation of the practice on the basis that medicalisation would legitimise it.^{[72] [73]} This poses a serious issue to women and children who do undergo FGC as medicalisation would inevitably mitigate some of the harmful effects of FGC and/or may alleviate the pain of the experience itself.^[74] Particularly, in a context where women and children may be subjected to FGC without their consent, medicalisation could at least lessen the ramifications of the procedure. Furthermore, engaging a medical practitioner may also lead to more informed consent from the person undergoing FGC as they would be advised of the risks of the procedure. This would also allow for a safer regime for FGC procedures given that medicalised procedures are generally regulated and accountability for “botched” procedures can be established. Non-medicalisation of FGC, in contrast, ‘drives [FGC] underground’ rather than eliminates the practice.^[75] However, WHO and the international community remain firm on the stance of medicalisation considering it to just be another form of violation of ‘girls’ and women’s right to life, right to physical integrity, and right to health.’^[76] This has led some to criticise that the attitudes on medication of the practice is ‘not formulated on health concerns’ but on a reasoning based on ‘political and other extraneous factors,’ as the arguments against FGC on the basis of unqualified practitioners^[77] and unhygienic and dangerous conditions of the procedure could easily be overcome through medicalisation.^[78] While some have argued that even with medicalisation, there are cases of ‘girls bleeding to death after physicians performed the procedure,’^[79] this neglects the fact that in most cases, with health professionals performing FGC some of the more ‘immediate physical consequences’ such as ‘severe pain, bleeding and infections,’ can be controlled through the use of ‘antiseptic techniques, anaesthetic and analgesic medication.’^[80] In spite of this, the Western medical world continues to reject the practice of medicalisation, with many claiming, with no real justification, that the risks associated with FGC is only ‘slightly mitigated’ when performed by a medical professional.^[81]

The hard line stance against medicalisation was adopted in an incident that took place at the Harbourview Medical Centre, Seattle, Washington in 1996, where a number of Somali immigrants demanded that infibulations be performed on their daughters. When the hospital refused to perform infibulations, the immigrants expressed that they would ‘transport their girls back to Somalia where infibulations would be done.’ In order to prevent the girls from being subjected to infibulation, the hospital proposed performing a procedure that would involve a ritual nicking of the prepuce (clitoral hood) with no excision of the tissue, under local anaesthetic for children who were mature enough to comprehend the procedure and give their consent. This came to be known as the “Seattle Compromise.” The Seattle Compromise, however, provoked a strong outcry of objection which eventually led to the Attorney General of the United States declaring the compromise illegal under ‘American anti-FGM laws.’ The arguments underpinning the objections are similar to those expressed by others against medicalisation in general as discussed above, as well as, that performing the procedure would have ‘sanctioned medically-unnecessary physical injury to children.’ ^[82] The ethics of FGC, whether performed on adult or children, are often questioned on the basis that it would be ‘unethical to injure a healthy body; although carried out in sterile conditions,’^[83] however, these ethics seem to be applied unequally, as other analogous practices, such as clitoral piercings, are seen as permissible. Though unpopular, the view that some form of medicalisation and compromise may be effective in negating the harmful impact of FGC is advanced by some qualified bodies, as reflected in the American Academy of Paediatrics’ statement issued in 2010 which suggested that legislative changes allowing paediatricians to offer a ritual nick as a compromise to mitigate FGC related harm may be more effective than laws banning the practice outright.^[84]

Criminalisation is another adverse consequence of the no tolerance stance on FGC as it drives the practice underground exposing young women and girls to further health risks.^[85] For instance, under the “Edo law” in Nigeria, punitive measures are not only specified for those who practice it, but also for ‘any person who offers herself’ for circumcision. As such, women consenting to undergo the procedure may be found guilty of an offence and can be liable to pay a fine of ‘one thousand naira or imprisonment for not less than six months or both.’^[86] Ghana’s national anti-FGC legislation also stipulates punitive measures for those who undergo FGC; however, it do not distinguish between those who undergo FGC consensually and non-consensually, making either person liable to face ‘imprisonment of not less than three years.’^[87] This conflates consensual FGC with forced FGC and may lead to victims facing the same sanctions as their perpetrators.^[88] Criminalisation further discourages people from seeking medical intervention where an FGC procedure is botched, thus further exposing young women and girls to serious health risks.

IX ANALOGOUS PRACTICES

In spite of the vehement opposition to FGC, various practices that are analogous, if not, similar to FGC are carried out upon the request of women in the West. These practices include vaginoplasty, labioplasty, and even hymenoplasty (reconstruction of the hymen). These surgical procedures often have similar risks that are associated with FGC but are entirely permissible and medicalised for the safety of those undergoing the procedure.^[89] Rather than being perceived as “mutilation,” practices such as clitoral piercings are viewed as cosmetic “enhancements”^[90] There are many anatomical similarities between these procedures and categories of FGC. For instance, Type 1 of FGM involves ‘cutting or removal of the clitoral hood,’ which is ‘is anatomically identical to the Western “cosmetic” practice of clitoral unhooding.’ Cutting of the labia minora, which falls under Type 2 of FGM is similarly ‘anatomically identical to the Western “cosmetic” practice of labial trimming.^[91] Even infibulation, one of the more extreme forms of FGC, has parallel features to ‘vaginal tightening procedure(s)’ that exist in the West.^[92] These practices are non-therapeutic but WHO has neglected to take a position on these procedures while simultaneously prohibiting all forms of FGC.^{[93] [94]} While some have tried to justify this distinction between “genital cosmetic surgery” and FGC by citing ‘psychological advantages’ of those practices to women, the same can be argued for FGC ‘in societies where [FGC is] acceptable.’^[95] This has led to criticisms that this difference is solely based on the fact that “genital cosmetic surgeries” are ‘simply more familiar’ to a Western viewpoint and therefore are not seen as foreign or ‘barbaric,’ and is permissible in spite of its moral and ethical ambiguities.^[96] This further begs the question as to why non-Western women are not permitted to have a say in what they can and cannot do to their bodies while Western women are.^[97]

Male circumcision (MC) is another practice that is analogous to FGC but permitted for reasons that are unclear. While some argue that MC has lesser health consequences and some medical benefit, this is not true for all cases as the suggestion that boys are never harmed by MC is a ‘vast oversimplification.’^[98] Just like FGC, MC can vary in its practice and the way in which it is conducted.^[99] The idea that MC is largely safer and less ‘medically risky’ is simply untrue as it would depend entirely on the qualifications of the circumciser, whether anaesthesia is used, whether the procedure is undertaken in sanitary conditions and other such factors.^[100] These factors would inevitably change according to the context within which the procedure is carried out. In fact there have been recorded cases of MC-related deaths.^[101] MC and FGC are also medically comparable. Anatomically, Type 1 FGC, particularly, the removal of the clitoral hood is ‘comparable to [MC] as the clitoral hood and foreskin ‘serve similar functions.’^[102] The reasons cited for justifying non-therapeutic MC also share traits with the justifications used for FGC, with most attributing MC to cultural traditions or religious beliefs.^[103] Many have thus questioned as to why there is a double standard to these largely similar practices, with some suggesting that either girls ‘should have the same access to cultural identity-promoting genital rituals as boys’ or MC should also be considered a violation of young boys’ rights to bodily integrity. ^[104] There are also types of MC that, while may not be anatomically comparable to infibulation, can be subjectively viewed to be as extreme as infibulation, such as subincision, a practice that involves the cutting open of the underside of the penis. However, as is the case of infibulation, this practice is also rare, accounting for ‘approximately 10% of [all MC] cases.’ The psychological impact that MC has on some young boys also cannot be undermined, with some men reporting feeling life they had something ‘taken from them’ and even using the term ‘mutilation to describe their circumcised state,’^[105] with many opting to undergo ‘foreskin restoration.’^[106] The practice of MC also poses a challenge to the claim that FGC is a form of discrimination against women, as there are no known societies that subject their women to FGC whilst not practicing MC as well.^[107] The refusal to appropriately address the different treatments of MC and FGC by opponents of FGC further poses a challenge to eradicating FGC as proponents of FGC are ‘quick to identify the double standard’ and gives rise to the accusation of cultural imperialism^[108] as it can be perceived that MC is simply tolerated due to its normalisation in Western societies.^[109]

X UNIVERSALISM OR CULTURAL IMPERIALISM?

The various issues with WHO’s definition and categorisation of FGC as well as the “double standard” between FGC and comparable “Western” practices detailed above pose a serious risk of undermining the prohibition on FGC. Under the theory of cultural relativism, FGC should be considered a ‘cultural practice’ and it should not be viewed as wrong ipso facto just because it is foreign to Westerners.^[110] However, some validly argue that culture alone ‘cannot be a valid justification for human wrongs’^[111] There are of course many problematic features of FGC, including that it is on most occasions, conducted on minors who cannot give informed consent on the procedure. However, there is evidence that a growing number of children in the West, ‘aged 14 or even younger,’ undergo non-therapeutic cosmetic genital surgeries, some of which carry the same risks as FGC, with permission from their parents.^[112] That is to say that both practices cannot simply be distinguished as a result of the ages of those that undergo it.^[113] Arguments for prohibiting FGC on the basis that it performed on children is also a moot point given that the abolishment of FGC applies to all, including adult women. The reasoning seems to be that no person would ‘freely and consciously consent to the practice,’ but rather are compelled to undergo FGC as a result of societal pressure, patriarchal notions and perhaps even internalised misogyny.^{[114] [115]} This view, however, seems to be based on presumptions that are paternalistic with Westerners playing the role of the “enlightened saviour” for women from non-Western societies and is premised on the assumption of superiority of one’s own culture.^[116] It is also reminiscent to the colonial mindset that justified erasure of cultural identities as a form of “civilising” the “savage locals,” thus giving rise to the accusation of cultural imperialism. This ‘racist othering’ of the practice and depicting all who undergo FGC as ‘passive, voiceless or clueless victims,’ is criticised and rightfully so.^[117] This continued misrepresentation of FGC as a ‘harmful cultural practice’ also alienates the very community members needed to ‘make headway in abolishing’ FGC. This is reflected in societies where FGC is criminalised but the practice continues to be widespread as^[118] the move to eliminate FGC is seen as ‘an unjustified attempt by the West to impose Western cultural values on others.’^[119]

XI REFRAMING THE DEBATE

It is clear from the above that while the move to eradicate FGC may be well-intentioned and came about as a means to protect young girls and their agency in relation to their own bodies, the zero-tolerance approach to FGC merely increases the harms that are experienced by young girls. It should foremost be noted that compelling children who are unable to give informed consent to undergo a non-therapeutic procedure carrying major health risks should be regarded a ‘form of torture’ and be rejected entirely as a practice.^[120] However, there is no cogent reasoning that justifies applying the same approach to adult women who are of age to make informed decisions about their bodies as this would in turn take away their agency. It is futile to attempt to protect young girls’ rights to bodily autonomy whilst also violating the same of adult women, particularly, when adult women living in Western societies have said bodily autonomy to undergo analogous practices. Additionally, the stance on non-medicalisation is just a further deprivation of non-Western women’s rights to health and should be abandoned as there is clear evidence that if a milder form of FGC is performed by a medical professional, the procedure would be safer and less risky for women.

This paper thus argues that rather than eliminating the practice entirely, a more pragmatic approach may not only minimise any potential harmful impact on women and children but could also lead to a lesser degree of contention and higher degree of conformity. While some may argue that within particular contexts of entrenched gender inequality, true autonomy for women may not be achievable. This is conceded as the influences of societal pressures on the individual in particular contexts should not be overstated.^[121] However, the fact that this practice holds significance for women in certain cultures cannot simply be overlooked and chastised as internalised misogyny or lack of awareness.^[122] For instance, Ahmadu ‘presents her own experience of [FGC] as empowerment’ and a means to balance her American identity with her Sierra Leonean roots.^[123] She puts forth that ‘the will of the women concerned should be the crucial point of any normative perspective.’ This paper is inclined to accept this view as ultimately any change to such practices be it eradication or continuation solely depends on the communities within which the practice takes place. Suggestions have been made that the procedure should be made exclusively available to consenting adults,^[124] as this would represent true bodily autonomy for women and constitute liberty which is a fundamental aspect of human rights.^[125] As such, particular forms of FGC when conducted on informed and consenting adults who choose to undergo this practice ‘autonomously and uncoerced’^[126] can in fact be compatible with our standard of acceptable norms and women’s rights to ‘health, physical integrity, and individual autonomy.’^[127]

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^[1] Janne Mende, ‘Normative and Contextual Feminism. Lessons from the Debate Around Female Genital Mutilation’ [2018] (67) Gender forum 47, 1.

^[2] Nnamuchi, Obiajulu, ‘"Circumcision" or "mutilation"? Voluntary or Forced Excision? Extricating the Ethical and Legal Issues in Female Genital Ritual’ (2012) 25(1) Journal of Law and Health 85, 90-91.

^[3] Lunde, Ingvild Bergom et al, ‘‘Why Did I Circumcise Him?’ Unexpected Comparisons to Male Circumcision in a Qualitative Study on Female Genital Cutting Among Kurdish–Norwegians’ (2020) 20(5) Ethnicities 1003, 1005-1006.

^[4] Nnamuchi (n 2) 90-91.

^[5] Mende (n 1) 2.

^[6] Earp, Brian D, ‘Between Moral Relativism and Moral Hypocrisy: Reframing the Debate on “FGM”’ (2016) 26(2) Kennedy Institute of Ethics journal 105, 105–6.

^[7] Oba, Abdulmumini A, ‘Female Circumcision as Female Genital Mutilation: Human Rights or Cultural Imperialism?’ (2008) 8(3) Global Jurist 8, 21.

^[8] Mende (n 1) 2.

^[9] Oba (n 7) 20.

^[10] Female genital mutilation (FGM), UNICEF, (Webpage, February 2020) https://data.unicef.org/topic/child-protection/female-genital-mutilation/

^[11] UNFPA, Demographic Perspectives on Female Genital Mutilation (Report, 2015).

^[12] Prevalence of female genital mutilation, WHO, (Webpage) https://www.who.int/teams/sexual-and-reproductive-health-and-research/areas-of-work/female-genital-mutilation/prevalence-of-female-genital-mutilation

^[13] Gordon, John‐Stewart, ‘Reconciling Female Genital Circumcision with Universal Human Rights’ (2018) 18(3) Developing world bioethics 222, 222.

^[14] World Health Organization, Department of Reproductive Health and Research, Eliminating female genital mutilation, 2008.

^[15] Elimination of female genital mutilation, HRC Res 44/L.20, UN Doc A/HRC/44/L.20, (14 July 2020, adopted 16 July 2020).

^[16] UN,’Goal 5: Achieve gender equality and empower all women and girls,’ Sustainable Development Goals, (Webpage) https://www.un.org/sustainabledevelopment/gender-equality/.

^[17] Eliminating female genital mutilation (n 14).

^[18] Elimination of female genital mutilation (n 15).

^[19] Earp (n 6) 106.

^[20] Ibid 107.

^[21] Ibid.

^[22] Ibid.

^[23] Ibid.

^[24] World Health Organisation, ‘Female genital mutilation,’ (Webpage, 3 February 2020), https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation

^[25] Ibid.

^[26] Earp (n 6) 198.

^[27] Oba (n 7) 4.

^[28] Earp (n 6) 198.

^[29] Oba (n 7) 21.

^[30] Female genital mutilation (n 24)

^[31] Earp (n 6) 111.

^[32] Mende (n 1) 7-8.

^[33] Earp (n 6) 112.

^[34] Mende (n 1) 7.

^[35] Earp (n 6) 112.

^[36] Mende (n 1) 7.

^[37] Earp (n 6) 120.

^[38] Oba (n 7) 5-6.

^[39] Convention on the Elimination of Discrimination Against Women (‘CEDAW’), opened for signature: 1 March 1980, 11 UNTS 1249, (entered into force 3 September 1981), art 2.

^[40] Ibid art 5.

^[41] Nnamuchi (n 2) 112.

^[42] Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa (‘Maputo Protocol’), opened for signature: 11 July 2003, OAU/AU Treaties, Conventions, Protocols & Charters, (entered into force 25 November 2005), art 5.

^[43] Convention on preventing and combating violence against women and domestic violence (‘Istanbul Convention’), opened for signature: 11 May 2011, 11 CETS 210, (entered into force 1 August 2014), art 38.

^[44] Convention on the Rights of the Child (‘CRC’), opened for signature: 20 November 1989, 1577 UNTS 3, (entered into force 2 September 1990), art 24(3).

^[45] Ibid art 19(1).

^[46] Khosla, Rajat et al, ‘Gender Equality and Human Rights Approaches to Female Genital Mutilation: a Review of International Human Rights Norms and Standards’ (2017) 14(1) Reproductive health 59, 3.

^[47] The African Charter on the Rights and Welfare of the Child (‘Children's Charter’), opened for signature: 1990, OAU/AU Treaties, Conventions, Protocols & Charters, (entered into force 1999), art 1(3).

^[48] Nnamuchi (n 2) 113.

^[49] Ibid 87–8.

^[50] Oba (n 7) 12.

^[51] Female genital mutilation (n 24)

^[52] Muteshi (n 55) 2.

^[53] Ibid.

^[54] Earp (n 6) 122.

^[55] Ibid 128–9.

^[56] Ibid 127.

^[57] Ibid 127–8.

^[58] Ibid 128–9.

^[59] Oba (n 7) 12–13.

^[60] Ibid 9.

^[61] Earp (n 6) 128–9.

^[62] Oba (n 7) 9–10.

^[63] Ibid 11.

^[64] Nnamuchi (n 2) 94.

^[65] Earp (n 6) 117.

^[66] Oba (n 7) 10.

^[67] Earp (n 6) 117.

^[68] Muteshi (n 55) 2.

^[69] Oba (n 7) 11.

^[70] Mende (n 1) 8.

^[71] Clarke, Elinor and Richens, Yana, ‘Female Genital Mutilation: An ‘old’ Problem with No Place in a Modern World’ (2016) 95(10) Acta obstetricia et gynecologica Scandinavica 1193, 1193.

^[72] Earp (n 6) 123.

^[73] Leye, Els et al, ‘Debating Medicalization of Female Genital Mutilation/Cutting (FGM/C): Learning from (policy) Experiences Across Countries’ (2019) 16(1) Reproductive health 158, 4-5.

^[74] Mende (n 1) 9.

^[75] Oba (n 7) 19.

^[76] Earp (n 6) 123.

^[77] Oba (n 7) 19.

^[78] Ibid 19-20.

^[79] Moschovis, Peter P, ‘When Cultures Are Wrong’ (2002) 288(9) JAMA : the journal of the American Medical Association 1131,

^[80] Leye (n 76) 4.

^[81] Oba (n 7) 19–20.

^[82] Ibid 26–7.

^[83] Utz-Billing, I and Kentenich, H, ‘Female Genital Mutilation: An Injury, Physical and Mental Harm’ (2008) 29(4) Journal of psychosomatic obstetrics and gynaecology 225, 228.

^[84] Leye (n 76) 3.

^[85] Oba (n 7) 25.

^[86] Ibid.

^[87] Nnamuchi (n 2) 116.

^[88] Ibid.

^[89] Oba (n 7) 28-29.

^[90] Earp (n 6) 121-122.

^[91] Earp (n 6) 121.

^[92] Ibid.

^[93] Oba (n 7) 30.

^[94] Earp (n 6) 129.

^[95] Oba (n 7) 29-30.

^[96] Earp (n 6) 124.

^[97] Oba (n 7) 33.

^[98] Earp (n 6) 198.

^[99] Lunde (n 3) 1004.

^[100] Robert Darby and J. Steven Svoboda, ‘A Rose by Any Other Name? Rethinking the Similarities and Differences between Male and Female Genital Cutting’ (2007) 21(3) Medical anthropology quarterly 301, 306.

^[101] Earp (n 6) 114.

^[102] Nnamuchi (n 2) 95.

^[103] Lunde (n 3) 1006.

^[104] Ibid 1005.

^[105] Earp (n 6) 141.

^[106] Ibid 142.

^[107] Ibid 112.

^[108] Darby (n 101) 313.

^[109] Ibid 315.

^[110] Nnamuchi (n 2) 96.

^[111] Oba (n 7) 2.

^[112] Earp (n 6) 118.

^[113] Ibid 119.

^[114] Mende (n 1) 5.

^[115] Earp (n 6) 201.

^[116] Oba (n 7) 34.

^[117] Mende (n 1) 3.

^[118] Nnamuchi (n 2) 95.

^[119] Ibid 95–6.

^[120] Gordon (n 13) 229.

^[121] Nnamuchi (n 2) 106–7.

^[122] Earp (n 6) 111.

^[123] Mende (n 1) 4.

^[124] Nnamuchi (n 2) 103.

^[125] Ibid 106–7.

^[126] Gordon (n 13) 228.

^[127] Ibid 223.