Rethinking the Anti-FGM Zero-Tolerance Policy: from Intellectual Concerns to Empirical Challenges

The zero-tolerance strategy intends to promote respect for the physical integrity and rights of all women and girls. However, it has Western-centric implications that unequally distribute the right to dispose of one’s body according to race and ethnicity. Indeed, the prohibition only concerns the customary genital cutting practices in African and South-Asian countries but does not apply to female genital cosmetic surgeries, which are increasingly desired and practiced on white adult women and under-age girls worldwide. Commonly performed cosmetic surgeries include labiaplasty which involves the partial or complete removal of the labia minora for aesthetic reasons, as well as “cosmetic” clitoridectomy, hoodectomy and vaginal tightening. Although these cosmetic procedures involve the cutting of the same parts of the genitalia as FGM type I or II, for instance, as Earp shows (see Earp in this special issue), it is commonly argued that “FGM” and genital cosmetic surgery cannot be compared. For instance, as Bader [22] highlights, experts frequently point out that FGC is performed on underage girls without their consent, whereas genital cosmetic surgery is an informed choice made by adult women aware of the consequences.

However, various elements of this argument are flawed. First of all, the prohibition of FGM in many Western countries is also extended to adult women, while cosmetic surgeries are sometimes performed on underage girls’ genitalia. Secondly, the call for the respect of children’s rights is only applied to girls, whereas other medically unnecessary genital modification practices such as on intersex infants and boys as performed in Western clinics or even in FGC-practicing countries are overlooked by the zero-tolerance policy (Chase 2002; Ehrenreich and Barr 2015; Kraus 2013). The recent declaration of the unconstitutionality of the US anti-FGM ban by a federal judge in 2018 relied precisely on the argument that protection from genital cutting should be equally guaranteed to all children, regardless of their gender [23].

Medical recommendations on genital cosmetic surgery indicate that such procedures should not be performed on minors [24‐26]. The American College of Obstetricians and Gynaecologists [2, 24] writes, “Although there may be a perception that labiaplasty is a minor procedure, serious complications can occur (e.g., pain, painful scarring, dyspareunia, hematoma, oedema, and infection)”. Despite these recommendations, the number of cosmetic surgeries is increasing worldwide, including among minors. The Independent newspaper in the UK states that “more than 200 girls under 18 had labiaplasty on the NHS in 2015-16 — more than 150 of whom were under 15”, a procedure that surgeons consider as the “world’s fastest-growing cosmetic procedure” [27]. The International Society of Aesthetic Plastic Surgery statistics indeed show that in 2016, 45% more labiaplasty procedures were carried out than in 2015, which in 2017 amounted to a reported total of 138,765 labiaplasties performed worldwide [28, 29].

Until recently, Western public discourse considered scholarship on the comparison between FGC and other genital modifications on adult women and minors such as intersex surgeries, male circumcision, and genital cosmetic surgeries as mere intellectual concerns. However, the heated discussion during the symposium demonstrates that what has long been considered an academic preoccupation is posing real-life challenges with moral dilemmas. Professionals working with women and girls who have undergone FGC in compromising positions in socio-legal and healthcare settings as well as during prevention campaigns, both in societies where the practice is normative and among diaspora communities in high income countries. Yet, to date little has been published on the challenging situations that arise as consequences of the contradictory aspects of zero-tolerance policies for professionals and the campaigns that are shaped by and respond to international agreements, human rights laws and health recommendations.

The zero-tolerance policy has its origins in the international movements against FGC. The terms female “genital mutilation” and “sexual mutilation” first appeared in the 1970s when internationally organized campaigns against the practice became successful. Although campaigns against the practice have been around since the beginning of the twentieth century [30, 31], the League of Nations, and after 1946 the Economic and Social Council (ECOSOC) of the UN, refused to take it up as an agenda or recommend legislation against it due to the conflicts that campaigns against the practice caused in the colonies of Sudan and Kenya [30‐32].

Abu-Sahlieh [32] notes that female circumcision, as it was still called at the time, came up for the first time in a conference held by the Société pour la sauvegarde de l’enfance in Geneva in 1931, when some European delegates pleaded for an end to these “barbaric customs”. However, the majority did not share their views, and the subject was dropped until the 1950s [32]. In 1952, the ECOSOC recommended its member states to act towards abolishing all forms of violence against women that violate the physical integrity and dignity of women according to the universal declaration of rights including “female circumcision”. Yet, 7 years later, it was decided at an international assembly of the WHO that no further action should be taken because “these ritual operations […] are a result of social and cultural conceptions” [32].

In 1976, the ECOSOC pushed the WHO to publish the Robert Cook report, which defined the four types of FGM that are still used today: clitoridectomy (I), excision (II), infibulation (III) and all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area (IV). Three years later, at a seminar on “traditional practices affecting the health of women and children” in Khartoum, Sudan, the WHO officially became committed to “fighting against” FGM [32, 33]. Feminist activism and policy-related research undertaken for instance by Fran Hosken—now well-known for the Hosken Report: Genital and Sexual Mutilations of Females [34]—provided evidence and raised awareness of the issue at an international level.

In 1991, the WHO recommended that the UN adopt the term “female genital mutilation” and since then this label has been commonly used in UN documents [35]. In 1997 a joint statement by the WHO, UNICEF, and the UNFPA was published stating their shared commitment to bring the practice to an end [36].

The enactment of a global ban formed a crucial part of the global anti-FGM strategy. Feminist activism advocating the eradication of FGC in the 1970s fell on fertile ground in Europe and North America. As African migrants started arriving in the global North, laws were soon put into place to criminalize the practice. France was the first European country to outlaw FGM in 1979. In their Penal Code, FGM is classified as a form of assault punishable as an “act of violence causing mutilation or permanent disability” (Article 222–9). Three years later, Sweden enacted a specific law prohibiting FGM. The Swedish initiative was followed by many other countries worldwide, including receiving countries in the global North as well as countries where the practice is socially normative in the global South.⁶ The idea was that legislative reform should be supported by social change programmes aiming to strengthen the environment for the abandonment of FGC and the internalization of new socio-legal norms [37]. While some countries outlaw FGC only on minors, others extend the prohibition to adult women. These laws are enforced according to the definitions of the zero-tolerance policy—namely, in a stricto sensu interpretation. The following Australian and Swiss criminal court cases are illuminating examples of how the law is interpreted strictu sensu when FGM is carried out on minors, regardless of whether physical damage is observed and whether the procedure was performed prior to or after migration. This strict prohibition is also applied to adult African women who wish to undergo FGC (see the Kenyan case below), yet is not applied when protagonists involved (i.e., doctors and patients) are white (see the British case).

In Australia, a criminal investigation in November 2015 led to the conviction of the mother of two girls of Indian origin for having her daughters “mutilated” despite the fact that there was no physical scar according to expert examinations. The girls had gone through a Dawoodi Bohra ceremony during which their clitoral hood was “nicked” with a sharp tool [38]. The mother, the nurse performing the ritual and the community leader were charged with 15 months imprisonment.⁷ Three years later, however, they were all acquitted after the judge ruled that physical “damage” must have occurred to call this intervention a “mutilation” [39]. New medical evidence that was presented showed that the clitoral glans of both girls was untouched. It was claimed that this evidence had been “absent” at the time of the trial because of the girls’ pre-puberty status.⁸ In October 2019, the prosecutors sought an appeal to the Australian high court which stated that, even though no physical damage had been made, FGM was “illegal in all its forms”.⁹ However, experts warned that re-opening this trial would cause more trauma to the girls.

In Switzerland, a Somali mother was convicted in August 2018 for having had her two daughters cut in Somalia before immigrating to Switzerland. The judge of the Swiss canton of Neuchâtel applied the second paragraph of the Swiss anti-FGM Act stating the universality of the offence, which allows the prosecution of anybody who is—at the time of the prosecution—in Switzerland, regardless of where and when FGM took place. Despite the fact that this case constitutes a first in European legal history of FGC [40], this conviction raised concerns among professionals working with the African diaspora. First of all, it was not clear whether professionals from now on had the duty to report every parent who had performed FGC on their daughters before immigrating to Switzerland. Secondly, there were doubts about whether long-established foreign residents would be threatened with deportation [41], as FGC is listed as among the crimes leading to mandatory deportation [40]. Finally, it was uncertain whether ongoing and future asylum requests made by families with daughters affected by FGC would be rejected because they had already breached the Swiss criminal law [42].

The strict reading of national anti-FGM legislations with regard to traditional forms of FGC stands in stark contrast to the lack of regulation of other genital modification practices on minors, such as male circumcision and female genital cosmetic surgery. For instance, Essén and Johnsdotter [43] pointed out that in three Scandinavian countries (Sweden, Norway and Denmark), operations on the external female genitalia that are designed to “mutilate them” or to produce permanent changes are prohibited and “must not take place, regardless of whether consent has or has not been given” (Swedish law). In the Danish law, the line between genital cosmetic surgery and FGM is even more blurred: “Any person who, by committing an act of violence, with or without consent, excises or in other way removes, in part or completely, female external sex organs shall be liable to imprisonment for any teiui not exceeding six years.” (§ 245 a) There is little ambiguity about the formulation of this law. Stricto sensu labiaplasty and hoodectomy are punishable with a prison sentence, regardless of whether consent has been obtained and even when the procedure is performed in medical settings by a surgeon. Essén and Johnsdotter [43] argue that age, ethnic background and consent should be irrelevant to the laws and hence any kind of non-medically motivated change to the genitalia ought to be punishable. Yet, according to our investigations, labiaplasty is performed in Denmark in public hospitals if “medically indicated” and privately for those willing to pay.

Writing almost three decades ago, legal ethicists, for instance, Bibbings and Aldridge [44] Sheldon and Wilkinson [45], raised concerns about the asymmetrical treatment of FGM and genital cosmetic surgery before the law. They warned of the lack of consistency of laws that distinguish between practices whereby the same parts of the genitalia are cut. Bibbings [46] advises that any legal regulation of body-altering practices should be consistent. She argues that if restrictions are to be imposed, they should be constructed according to valid health concerns and should treat the practices according to the risk involved, rather than merely enforcing dominant notions of the acceptable body.

Johnsdotter and Essén [47] argue that non-discriminatory policies should be adopted, which implies identifying a consistent and coherent stance in which key social values—including protection of children, bodily integrity, bodily autonomy, and equality before the law—are upheld. Different suggestions have been made as to how consistency could be achieved. Berer [48] calls for the prohibition of genital cosmetic surgery under the anti-FGM law. By contrast, Dustin [49] proposes to judge all forms of genital modification as cultural practices, possible on consenting adults but not on minors. She argues that this results in the prohibition of male circumcision and intersex surgery on minors, as well as the legality of re-infibulation and genital cosmetic surgery for adult women. Shahvisi [50], on the other hand suggests that all children should be equally protected from non-therapeutic genital surgeries while leaving adult women their agency and right to self-determination.

The corpus of scientific research and its conclusions regarding inconsistency nonetheless seem to pass unheard by lawmakers, and national and international organizations including the WHO, who continue to stand firm on the issue and hold that the “conceptual similarities” [51] between FGM and genital cosmetic surgery are irrelevant. Yet, this double standard produces empirical challenges and moral dilemmas for professionals.

Another important aspect that was debated extensively at the symposium was the issue of consent. Speakers and participants discussed whether individual consent could be a solution to reaching consistency. If we reject the concept of zero-tolerance because of the double standard relating to genital cosmetic surgery, under what circumstances might genital modifications be justified? For instance, should it be permissible to allow genital modifications such as pricking, labiaplasty and re-infibulation above the age of 18 if consent is obtained? On the surface it seems like introducing a policy linked to consent might resolve the controversial aspects of the zero-tolerance stance. This solution might be able to grant both—bodily integrity (the right to say no) and bodily autonomy [having the freedom to say yes or no].

Particularly in rural places where governmental infrastructure, healthcare and social services are weak or non-existent, people rely on each other as a safety net. It is thus not merely a question of cultural identity and belonging but also of safety and survival. The risk of taking a decision alone may mean losing one’s community support and slipping through the safety net. An important question to ask is what would consent even look like in this context and how to conceptually move away from relational personhood in autonomous decision making.