The Duck of Minerva

Human Rights Activism on the Cutting Edge

2 October 2012

The German Justice Ministry has outlined a new draft law regulating the circumcision of children in that country, on the heels of a Cologne court’s decision that circumcision of non-consenting minors constituted a human rights violation.The decision, after a four-year-old Muslim boy experienced uncontrollable bleeding following his ritual circumcision, sparked a firestorm, with some child rights activists hailing the decisionand while Muslim and Jewish communities within Germany and abroad argued that the ruling constituted a violation of religious rights.

The new law must pass by at least a 2/3 majority in the Bundestag, and could still be challenged in Germany’s highest court. However given the ease with which efforts to outlaw circumcision have been struck down in other contexts, it would not be at all surprising if this ruling were rolled back. Indeed already religious communities in Germany have resumed preparations for circumcision ceremonies, the industry having slowed to a halt in the weeks after the Cologne decision as physicians feared criminal liability under the ruling.

This week I’m at the 12thInternational Symposium on Genital Autonomy in Helsinki Finland, where I’m conducting field research within the transnational movement to eradicate the practice of surgically altering female, male and intersex minors. From my vantage point here, the political significance of these developments in Germany will not simply be determined by whether or not the law passes. Rather, the Cologne ruling (and press coverage of it) has shifted the framing of the circumcision debate away from questions of health or gender equity and toward the tension between children’s bodily integrity rights and the rights of parents to religious freedom.

The “intactivist” movement has been at a disadvantage in the former two debates. While there is no scientific consensus on the benefits and risks of infant circumcision (as indicated by the American Academy of Pediatrics’ report accompanying its recently revised policy statement on the issue), the absence of a consensus againstcircumcision for health reasons has made it easy for the mainstream human rights movement to avoid speaking out on the issue, particularly since the reconceptualization of circumcision as a preventive health measure by the World Health Organization. In political terms the “burden of proof” is on the intactivist movement rather than on the medical establishment so long as the issue is framed around questions of medical necessity or benefit, and frankly the movement is outmatched by the mainstream medical establishment in resources, professional access, and what Debbi Avant, Martha Finnemore and Susan Sell call “expert authority.”

A second argument often raised by the movement concerns gender equity: both Western countries and the elite human rights movement have been criticized by intactivists for opposing female genital mutilation while failing to similarly protect male children. A NOCIRCdelegation brought this issue before the UN Sub-Commission on the Protection and Promotion of Human Rights in 2001, arguing that the UN’s emphasis on girls rather than boys was discriminatory, and this sense that the policy neglect of this issue is discriminatory remains an important part of the movement’s narrative. (A study of letters to the editor on male circumcision found 25% of those critical of circumcision invoked comparisons to FGM. At the symposium, it was suggested that a class action suit might be on the horizon after 2015 for young US men circumcised after the US’ 1997 banon female genital mutilation, a bill which did not address infant males.) But these arguments too have fallen on particularly deaf ears within the mainstream human rights movement. This is partly because the narrative invites comparisons between circumcision as practiced on males versus females. Though Debra Delaetargues that the two most common form of male and female circumcision may in fact be roughly comparable, this is not widely understood by human rights activists. Moreover, however comparable the procedures may be medically, they are incomparable politically. FGM has been framed as a women’s issue – women being perceived in UN circles, however simplistically, as a vulnerable group relative to men. Men by contrast are not perceived as a vulnerable group by human rights elites so the argument that they require the same protection from harmful cultural practices has often been dismissed when linked to the FGM issue as currently constructed.

Reframing the issue around children’s rights, by contrast, potentially alters the terms of debate. The question being discussed in Germany today is not whether medical benefits of circumcision outweigh risks, or whether boys deserve equal protection as girls, but rather how to weigh any child’s right to bodily integrity against the right of parents (and wider communities) to self-determination over religious observances. The historical trend within the human rights movement has been  to prioritize the right of the vulnerable individual over that of the group.

Nevertheless there is no doubt that any norm change around this entrenched practice will be a lengthy and contested process – as the backlash against the initial Cologne ruling demonstrates, and as earlier norm campaigns engaging tensions between child rights and religious rights underscore. As former Tasmanian Children’s Commissioner Paul Mason explained during his talk here at the Symposium, it took nearly a century to get the UN to adopt language opposing biblically-mandated corporal punishment of children by parents, and that practice is still far from eradicated worldwide. Normative change around “genital autonomy” is in the early stages at best, and weighed against other rights-based concerns of significant gravity, the outcome is far from certain.