California’s Pending Child Protection Legislation: Unconstitutional!

by
Georganne Chapin, MPhil, JD
Intact America
March 14, 2019

The state of California has a pending child protection bill before its legislature. While we share the legislators’ condemnation of the activities this bill seeks to regulate, we also wish to point out the fact that the bill violates California’s state Constitution.

Senate Bill 201 seeks to “…prohibit a physician and surgeon from performing any treatment or intervention on the sex characteristics of an intersex minor if the treatment or intervention may be deferred until the intersex minor can provide informed consent…” The bill states: “‘Intersex minor’ means an individual born with atypical physical sex characteristics, including, but not limited to, chromosomes, genitals, or internal organs, and includes differences in sex development resulting from androgen insensitivity syndrome, congenital adrenal hyperplasia, and hypospadias.”

Because intersex surgery has been and remains the purview of the medical profession, the intersex bill contains extensive detail about the types of surgeries that have been traditionally performed upon children with anomalous genitalia in efforts to “normalize” the appearance of their sex organs toward either the male or female end of the spectrum of visible sex characteristics; it describes in similar detail measures that must be taken to prove medical necessity for such surgeries. The California intersex bill follows a 2018 resolution representing the first time a state set out to condemn and regulate “intersex surgery (the second was Connecticut and the third was Iowa, both in 2019)” and (b) includes extensive language about the rights of intersex people to “participate in decisions about surgery and other medical treatments or interventions on their physical sex characteristics, and to guarantee [them] the rights to bodily integrity, autonomy, and self-determination.” Bravo!

Since 1996, California has had a law on its books prohibiting female genital mutilation, also known as FGM. The law states: “‘Female genital mutilation’ means the excision or infibulation of the labia majora, labia minora, clitoris, or vulva, performed for nonmedical purposes.”  The current intersex bill is similarly sweeping.

So, what is wrong with the anti-FGM law? What’s wrong with the proposed intersex law? Why are they unconstitutional?

California’s Constitution contains an “equal protection” clause which states: “A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens…” In other words, California’s laws should never favor, protect, or privilege one group over another.

While they rightfully protect girls and intersex children from medically unnecessary surgery on their genitalia, whether carried out in a “cultural” or medical context, they deny these protections to boys.

Should not boys also be protected from the medically unnecessary surgical modification of their genitals? Are not boys entitled to the same rights to bodily integrity, autonomy, and self-determination as girls and intersex minors?

“Routine” infant male circumcision – like “female genital mutilation” – entails the removal of a normal, natural part of a boy’s genitals in the absence of any medical necessity. Sometimes – as in the case of female genital mutilation – male circumcision is performed for “cultural” reasons (I purposely draw no distinction between “culture” and “religion,” as there is simply no justification to favor the practices of groups who can point to a written text over those with a long oral tradition.) And sometimes – just as with intersex surgery – male circumcision is performed simply as a social or cosmetic procedure, justified as in the child’s best interest, helping him to “fit in” or to “avoid problems in the future.”

“Intersex” is a condition estimated to characterize somewhere between two and three percent of the population. It is not known how many girls are subjected to FGM in the United States, but the number is certainly less than one percent.

Possession of a penile prepuce (male foreskin), on the other hand, characterizes nearly half of the population. Until the mid-19^th century, surgical amputation of the foreskin was practiced only by Jewish and Muslim people, and by some tribal cultures. Victorian doctors introduced the practice in the United States and other Anglophone countries to stop boys from masturbating. By the mid-20^th century, “routine” circumcision had become embedded in American medicine, and still today, the United States is the only non-Jewish, non-Muslim country in the world where doctors routinely remove baby boys’ foreskins (South Korea and the Philippines also have high circumcision rates because of the influence of U.S. military hospitals.) While in the United States the incidence of routine infant circumcision varies widely by region, California’s rate remains among the lowest in the nation, at about 23 percent.

Just as intersex individuals are speaking out loudly against a medical establishment that overlooks individual autonomy in favor of social norms, American men of all ages are expressing indignation about having undergone the removal of their normal, functional foreskins when they were too young to either consent or resist.

Legislators from California and every other state seeking to redress the ethically and medically unjustifiable practices of “normalizing” surgery performed on the genitalia of girls and intersex children need to take notice, to ensure that any new laws be consistent with the “equal protection” or “laws uniform” clauses of their constitutions, and to protect all children.