Female Genital Mutilation: The Status of U.S. Laws Restricting the Practice

Nine years after the declaration of the International Day of Zero Tolerance for Female Genital Mutilation by the UN General Assembly in 2012, the United States is failing to protect its women and girls from this harmful practice. The world expects the United States to amplify efforts and to join the global call to eliminate FGM by 2030, especially after the declaration of unconstitutionality of the 20 years-old federal law banning FGM in 2018. Today, women and girls in the country only rely on states’ laws to protect them from this hideous practice.

The World Health Organization (WHO) defines Female Genital Mutilation, FGM, − frequently referred to as cutting or female circumcision − as “all procedures that involve partial or total removal of external female genitalia, or other injuries cause for non-medical reasons.” FGM has no health benefits for girls and women and instead has short and long-term consequences such as urinary and menstrual problems and even childbirth complications. Cutting has been categorized in four different types ranking from type one (clitoridectomy) which includes the partial or total removal of the clitoris or, in rare cases, only the fold of skin surrounding the clitoris, to up to type three (infibulation) which includes narrowing of the vaginal opening through the creation of a covering seal formed by cutting and repositioning the labia minora, or labia majora, sometimes through stitching, with or without removal of the clitoris.

Legal landscape in the United States

In 1997, the Center for Disease Control and Prevention (CDC) estimated that around 168,000 girls and women were in danger for these procedures. Since then, the estimates have sky rocketed and by 2016, approximately 513,000 women and girls in the United States undergo or were at risk of being cut. FGM has been illegal in the United States since 1996 when Congress passed 18 U.S.C. 7 §§116. The law included fine or imprisonment punishment for up to 5 years for practitioners who perform any harmful procedures to the female genitalia for non-medical purposes, including pricking, piercing, incising, scraping and cauterizing.

However, it was only in 2018 when Judge Bernard A. Friedman from the Eastern District of Michigan Southern Division declared the federal law unconstitutional. In United States v. Nagarwala. 17-CR-20274, 2018 judge Friedman concluded that Congress did not have the power to enact the federal law and that outlawing FGM falls in the proper domain of states. Today, more than a year later, Congress has failed to pass legislation protecting girls and women from cutting, including the Protect our Girls Act of 2018 and 2019. Nonetheless, House Resolution (H.Res.106) “Denouncing FGM as a violation of the human rights of women and girls” passed unanimously last May.

FGM in 2018, 2019, and 2020

Before Judge Friedman’s decision, only 27 states had laws prohibiting this practice. Moreover, in 2019, over 69 bills addressing cutting were introduced in over 25 states. As a result, 2019 closed with up with 35 states outlawing this practice, including Virginia, Arkansas, Illinois, Iowa, New Hampshire, North Carolina, North Dakota. Utah was an interesting example of a strong law aiming to protect over 1,769 women and girls at risk in the state. The enacted legislation included felony charges to perpetrators, prosecution of practitioners, parents, guardians, and FGM facilitators, as well as license revocation for medical professionals, among others.

It is expected that laws in other states, such as Hawaii, Massachusetts, Minnesota, Kentucky, Washington state, and the District of Columbia will get enacted during the 2020 legislative session ending in May. According to the Ayaan Hirsi Ali Foundation, all pieces of legislation should follow an anti-FGM Model Legislation which includes the following criteria:

• Prosecuting FGM has a felony and not as a misdemeanor.
• Protecting minors and people under guardianship or conservatorship.
• Prosecuting practitioners, parents, guardians and other individuals responsible for the care of minors and people under guardianship.
• Increasing the sentencing period up to 20 years.
• Moving burden of proof from survivors to investigators.
• Creating civil actions for survivors.
• Extending the status of limitation.
• Penalizing vacation cutting.
• Punishing medical professional by suspending or revoking their licenses permanently.
• Introducing FGM information into mandatory sex education classes and general education panels to inform people about the risk associated with these practices.
• Developing policies and procedures for the training providers of health services on recognizing the risk factors associated with FGM.
• Introducing mandatory reporting for law enforcement and health care professionals, police personnel, among others.
• Adopting federal and state FGM tracking system and annual statistical reporting.

Background

The WHO recognizes FGM as a human rights violation perpetrated upon little girls and women, and it is estimate than at least 200 hundred million women have been cut. It is important to dispel the misconception that FGM is an "African Problem." FGM is practiced in African subcontinent, but also in Asia, indigenous tribes in Colombia, and in the US. It takes place among all religious groups, including Muslims, Christians, and Jews. The United States needs to address this issue and join efforts to end this hideous practice before 2030.