Intersex Initiative: Prohibition of Female Genital Mutilation

Prohibition of Female Genital Mutilation

In 1996, President Bill Clinton signed into law Criminalization of Female Genital Mutilation Act, which made it a crime to circumcise, excise, or infibulate the whole or any part of the labia majora or labia minora or clitoris of another person who has not atteind the age of 18 years unless the operation is "necessary to the health of the person on whom it is performed." Further, the law states "no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that person, or any other person, that the operation is required as a matter of custom or ritual."

One could argue that intersex genital mutilation, at least those involving cutting of labia majora, labia minora or clitoris (e.g. clitoral reduction surgery on someone with a large clitoris) should be considered illegal, because it is not medically necessary and performed merely as a matter of custom or ritual.

However, the court is unlikely to agree with this interpretation because 1) the court will defer to the medical community's definition of "medical necessity," which currently includes intersex surgeries; 2) the legislative intent of this act never included banning intersex surgeries; 3) if this legislation were to apply to intersex surgeries, it would force the government to imprison dozens of physicians who are just following the medical standard--an amusing thought, but it is politically unlikely that this will ever happen.

Considering the enormous political power of the medical lobby, we feel that any effort to criminalize intersex genital surgeries--so long as it is accepted as the standard medical practice--is futile. Instead, we believe that strengthening civil liability laws regarding informed consent, patient rights, and children's autonomy will likely to restrict unnecessary intersex surgeries.

For More Information

Chase C (2002). "'Cultural Practice' or 'Reconstructive Surgery'?: U.S. Genital Cutting, the Intersex Movement, and Media Double Standards." In Genital Cutting and Transnational Sisterhood: Disputing US Polemics, edited by C. Robertson and S. M. James. Champaign: University of Illinois Press.
Intersex Initiative's page for V-DAY (global movement to end violence against women and girls)

Full Text: Criminalization of Female Genital Mutilation Act of 1996

18 USC Sec. 116 01/22/02

TITLE 18 - CRIMES AND CRIMINAL PROCEDURE PART I - CRIMES CHAPTER 7 - ASSAULT

Sec. 116. Female genital mutilation

Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.
A surgical operation is not a violation of this section if the operation is -

necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or
performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.

In applying subsection (b)(1), no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that person, or any other person, that the operation is required as a matter of custom or ritual.

(Added Pub. L. 104-208, div. C, title VI, Sec. 645(b)(1), Sept. 30, 1996, 110 Stat. 3009-709.)

EFFECTIVE DATE

Section 645(c) of div. C of Pub. L. 104-208 provided that: "The amendments made by subsection (b) (enacting this section) shall take effect on the date that is 180 days after the date of the enactment of this Act (Sept. 30, 1996)."

CONGRESSIONAL FINDINGS

Section 645(a) of div. C of Pub. L. 104-208 provided that: The Congress finds that -

the practice of female genital mutilation is carried out by members of certain cultural and religious groups within the United States;
the practice of female genital mutilation often results in the occurrence of physical and psychological health effects that harm the women involved;
such mutilation infringes upon the guarantees of rights secured by Federal and State law, both statutory and constitutional;
the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control;
the practice of female genital mutilation can be prohibited without abridging the exercise of any rights guaranteed under the first amendment to the Constitution or under any other law; and
Congress has the affirmative power under section 8 of article I, the necessary and proper clause, section 5 of the fourteenth Amendment, as well as under the treaty clause, to the Constitution to enact such legislation.

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