Equal Protection Circumcision Lawsuit

GALDEF, in cooperation with Intact Global and Clopper Law, is seeking plaintiffs in an equal protection circumcision lawsuits that challenge laws prohibiting genital cutting of female children while failing to protect male and intersex children from similar, often more drastic, genital cutting. This legal action seeks equal protection under the law and accountability for discriminatory treatment.

This lawsuit asserts that it is fundamentally unfair to offer female children legal protection from forced, medically unnecessary genital cutting and not offer that same protection to male or intersex children.

The goal of the constitutional challenge is not to remove protection from genital mutilation for those assigned female at birth, but to convince the court to rule on the inherently discriminatory nature of the existing law and thereby compel the legislature to revise the law using gender neutral language, resulting in expanded protection for all children, regardless of assigned sex at birth.

The intent of the legal challenge is not to “lower the ceiling” of protection for girls, but to “raise the floor” of protection for all children.

A court victory would not result in a complete “ban” on circumcision or intersex surgeries, but would regulate medical professionals who perform non-therapeutic (medically unnecessary) genital modifications on healthy children, requiring them to wait until they reach the legal age to make their own decision on such permanent, irreversible genital surgery.

Legal Basis for the Equal Protection Claim

As early as 1995, some U.S. states enacted laws prohibiting female genital mutilation (FGM). These states also have constitutional guarantees of protection from discrimination or unequal treatment based on sex or gender.

The definition of FGM varies by state and includes infibulation, clitoral excision, labial excision, or excision of the clitoral prepuce/foreskin (“clitoral hood”), which is the exact anatomical equivalent of the penile prepuce/foreskin. Some states also prohibit nicking, pricking or scraping of the vulva, all of which are considerably less damaging than penile circumcision.

The federal statute against FGM was passed by Congress in 1997. In the first case against a Muslim physician in Michigan, a judge struck down the law as being unconstitutional on Federalist grounds (because FGM is already technically assault in most states) but also faulted the discriminatory nature of the statute by declaring:

“As laudable as the prohibition of a particular type of abuse of girls may be, it does not logically further the goal of protecting children on a nondiscriminatory basis.”

U.S. District Judge Bernard Friedman, United States v. Nagarwala, prosecution of a Muslim doctor in Michigan who performed minor nicking on the vulvas of her Muslim child-patients  (2018)

Respected constitutional law scholar Laurence Tribe also questioned the constitutionality of any FGM-specific law, noting:

“As someone whose life work has been wrapped up with matters of equal liberty and dignity without regard to sex, gender, gender identification, or sexual orientation, I believe the expansion of rights isn’t the exclusive province of the federal judiciary. Litigating issues like this under state constitutions, in state courts, is an option you should explore.”

Harvard Constitutional Law Professor Laurence H. Tribe, in email correspondence with GALDEF founder Tim Hammond regarding the constitutionality of laws protecting only females from non-therapeutic genital cutting (April 21, 2021)

Attorneys wishing to become better informed about the legal and constitutional issues can refer to our extensive Resources for Attorneys page.

Who is affected by such discrimination?

Discriminatory laws leave children assigned male at birth and transgender females at risk of newborn penile circumcision before they have developed agency. For many transgender women, the removed tissue could have been valuable for use in later vaginoplasty.

Some intersex children are born with nonbinary genitalia and are subjected to “genital normalization” surgeries. Others are born with visibly male-typical genitals but also have internal female reproductive organs, or nonbinary hormonal or chromosomal differences, but are nonetheless subjected to newborn penile circumcision.

At a minimum, newborn penile circumcision:

• causes excruciating physical pain and trauma to newborns
• places the child at immediate risk of hemorrhage, infection, surgical errors and even death
• irreversibly ablates up to 50% of the penile shaft skin
• severs important blood vessels and destroys fine touch nerve receptors
• destroys the unique mobile and lubricating functions of the foreskin
• permanently exposes the sensitive glans (penile head) to the outer environment
• causes the glans to keratinize, further reducing penile sensitivity
• leaves one or more permanent scars on the penis

If you were subjected to penile circumcision after your state enacted an anti-FGM statute, you may have standing to claim that the statute is unconstitutional and must be modified to comply with your state’s constitutional guarantees of equal protection.

For a more robust discussion of the discriminatory nature of current FGM-only laws, download “Why was the U.S. ban on female genital mutilation ruled unconstitutional, and what does this have to do with male circumcision?” (Ethics, Medicine and Public Health, 2020) or  watch Whose Body, Whose Rights? a groundbreaking and award-winning documentary that aired in 1995 across PBS television stations in the U.S. and is now part of the American Archive of Public Broadcasting.

You must be age 25 or younger and circumcised in a state that passed an anti-FGM statute before you were born; and:

EITHER…

Were assigned male at birth* and circumcised as an infant/child without medical necessity. * Born with male-typical genitalia (a penis); this includes cisgender males, transgender females and intersex people.

OR…

are the Guardian or Guardian ad Litem of a minor child who is currently under the age of 18, who was assigned male at birth* and circumcised as an infant/child without medical necessity. Examples of a Guardian/ad Litem could be an adoptive parent, grandparent, godparent, aunt/uncle, an adult sibling, or an attorney;

OR…

are parent(s) of a minor child who was assigned male at birth* who is currently under the age of 18, and you learned about the value of the foreskin AFTER granting circumcision consent and would NOT have consented if a state law had been in effect recognizing the right of all children, regardless of sex, to bodily integrity and protection from medically unnecessary genital surgery.

AND OPTIONALLY…

have already documented or are willing to document physical, sexual, emotional or psychological harm related to circumcision with a medical and/or mental health professional.

WE’RE ALSO SEEKING…

Parent(s) or legal guardian(s) of genitally intact children at risk of circumcision under the following scenarios:

• harmed by forced foreskin retraction by medical professionals who are now urging circumcision
• a child with normal developmental phimosis, or with a minor infection easily treated medically
• a child being used as an emotional pawn in a contentious parental dispute (“spite circumcision”)
• a child whose parents died, leaving him with a legal guardian who favors circumcision
• a child whose parent(s) converted to a genital cutting religion and want(s) him circumcised
• a child whose birth parent met a new partner who wants the child circumcised
• a child whose parents immigrated to the U.S. from a non-circumcising culture (e.g. Asia, Latin America), knowing little or no English, and are being solicited/coerced by medical professionals into authorizing circumcision to “make the boy healthier,” to “fit in” or to “be American”.

Attorneys wishing to assist and/or learn from other attorneys are encouraged to visit our Attorney Directory page.

Timeline

Involvement in the case would not be a sprint but a marathon, likely lasting at least a year, and possibly longer, depending on how quickly the courts move and/or the pace of the appeals process. Fortunately, once you file a case with an attorney, s/he handles the bulk of the workload. Your involvement happens at the start of the process by discussing and documenting your situation with your attorney.

Expectations

Participation may require you to be deposed (usually a half-day commitment), and appearing for trial (which is highly unlikely, since most cases do not go to trial). Other time commitments are optional, like showing up to court hearings or other events related to the litigation. Financial costs could be significant. Fortunately, GALDEF offers plaintiff assistance grants for which you or your attorney can apply to help defray some of the costs of litigation. Although your attorney(s) will appear in court for you and deal with media inquiries, participants should ask themselves the following questions. How do you feel about being named in full, by surname only, by initials or by a pseudonym (e.g. ‘John Doe’)? This may or may not have an impact on your family, friendships and other interpersonal or professional relationships. Since the case would likely draw media attention, how comfortable are you publicly discussing the physical, sexual, emotional, psychological or spiritual harm that you suffered from involuntary circumcision? Do you have a supportive network of family, friends, colleagues or members of the intactivist community?

Limitations

If victorious, participants might realize a financial settlement. Alternatively, a judgement could result in a change in medical policy and/or legislation that benefits children’s basic human right to bodily integrity.

For updated information on lawsuit status, visit the Litigation page on the Intact Global website.

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