Connecticut’s Pending Child Protection Legislation: Unconstitutional!

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

The state of Connecticut has two pending child protection bills before its legislature. While we share legislators’ condemnation of the activities these bills seek to regulate, we also wish to point out the fact that both bills violate the Constitution of the State of Connecticut.

The first bill, Senate Bill 505, forbids the practice of “female genital mutilation” or FGM – i.e., the culturally-based practice of pricking, incising, or cutting a minor girl’s genitals – and makes it a Class D felony. The bill arose in response to the dismissal by a federal court in Michigan of a case against a physician prosecuted under a similar federal law (18 U.S. Code § 116, also known as the Federal Prohibition Against Female Genital Mutilation Act of 1996) for operating on the genitals of three young girls. In dismissing the case, the judge said that despite the heinous actions of the physician (a woman from an Indian sect that practices female genital cutting), the federal law under which she was charged was unconstitutional because the behavior it proscribed falls under the rubric of “local criminal activity,” which is properly regulated by states.

The second bill in the Connecticut child protection pipeline attempts to regulate an activity that is only now becoming a topic of public discussion. Senate Bill 388 seeks to “…prohibit discrimination against a person on the basis of such person’s intersex status…” by banning “any licensed health care provider from engaging in medically unnecessary surgeries on an intersex person without such person’s consent.” Genital modification surgery of “intersex” minors refers to any surgical treatment to children born with atypical physical sex characteristics including but not limited to chromosomes, genitals, or internal organs.

Another related bill under consideration would bar discrimination against intersex individuals and provide a third option for gender designation on birth certificates, driver’s licenses and other legal documents. Taken together, the pending Connecticut intersex bills seek “to address the needs of [people in a] community who have suffered from discrimination, unnecessary surgery and inaccurate documentation of their gender, by providing relief from such issues.”

So, what is wrong with these bills prohibiting medically unnecessary genital surgery on girls and intersex children? Well, they’re unconstitutional!

Connecticut’s Constitution contains a “equal protection” clause which states: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.” In other words, Connecticut’s laws should never favor, protect, or privilege one group over another. While the anti-genital-mutilation laws summarized above 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 cases 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,” be normal,” or “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-19th 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-20th 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.) In the United States, the incidence of routine infant circumcision varies widely by region. At approximately 70 percent, Connecticut’s newborn circumcision rate is well above the national average.

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