Iowa’s Pending Child Protection Legislation: Unconstitutional!
Georganne Chapin, MPhil, JD
March 14, 2019
The state of Iowa has two pending child protection bills before its legislature. While we share the legislators’ condemnation of the activities these bills seek to regulate, we also wish to point out the fact that both bills violate Iowa’s state Constitution.
The first bill, House File 299 (together with the related House Study Bill 115) 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 legislation arose in response to the dismissal by a federal court in Michigan of a case against a physician prosecuted under a similar 1996 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 doctor (a woman from an Indian sect that practices female genital modification), 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. It is safe to say that – from the perspective of public opinion – the proposed Iowa law and similar legislative activity taking place in other states are unlikely to meet with much pushback; Americans are rather unified in their revulsion toward “female genital mutilation,” sharing a presumption – even if they are not particularly well-informed about the issue – that this practice is indefensible from either a cultural or a medical standpoint.
The second bill in the Iowa child protection pipeline is more unusual in that it attempts to regulate an activity that is only now becoming a topic of public discussion. House File 576 seeks to prohibit genital modification surgery or “treatment or intervention on the [physical] sex characteristics” of “intersex” minors – defined as children “born with atypical physical sex characteristics including but not limited to chromosomes, genitals, or internal organs….” 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 Iowa intersex bill is also noteworthy because it (a) represents only the second time a state has set out to regulate “intersex surgery (the first was California, earlier this year)” 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!
So, what is wrong with these bills? Why are they unconstitutional?
Iowa’s Constitution contains a “laws uniform” clause (similar to an equal rights amendment) which states: “…the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” In other words, Iowa’s laws should never favor, protect, or privilege one group over another. While the two laws summarized above 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.
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.) While in the United States the incidence of routine infant circumcision varies widely by region, Iowa’s rate remains among the highest in the nation, at well above 70 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 Iowa 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.