The Health Law Implications of Ritual Circumcisions

Abstract

Many countries around the globe, including liberal democracies, have forbidden ritual female circumcision, better known as female genital mutilation in all its variants, while ritual circumcision of young boys and female genital modifications for esthetic reasons are allowed. This difference in the legal treatment of comparable practices, such as male circumcision, the least invasive version of female circumcision and female genital cosmetic surgeries, receives criticism for the “double standards” that favors religious believers and the cosmetic surgery industry. To address properly the “double standards” criticism, this article focuses mainly on the legality of ritual male and female circumcision. It adopts a health law perspective to put the legality of both types of circumcision under critical scrutiny. This is a fruitful approach to explain why ritual male circumcision is generally allowed as an exception in law. That is not because of its religious narratives, but, because it has been considered a medical intervention that seems in the best interest of the child. The health law perspective also posits why female circumcision in its most severe variants should remain a crime. These variants of female circumcision have no health benefits and harm young female bodies significantly. The final part of this article reiterates that the health law perspective rejects convincingly exemptions for female circumcision and allows ritual male circumcision conditionally and temporarily. This conclusion gives an unsatisfactory feeling as the ban on male circumcision hangs like a Damocles sword above this traditional practice. To face the “Damocles sword” criticism and to develop an argumentation pattern that would fit a broader sense of justice concerning the legality of male circumcision, this article introduces two novel pragmatic arguments that explain the “double standards” regime beyond the health law perspective.

Keywords: Male Circumcision, Female Circumcision, Law and Religion, Abstraction from the Religious Dimension, Religion in Liberal Political Philosophy, Free Exercise, Jumana Nagarwala, Dawoodi Bohra