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Religion and the law once more: the circumcision debate

20 June 2011 6 Comments

circumcision 150x150 Religion and the law once more: the circumcision debateBy James Wilson

In San Francisco an attempt is presently being made to ban the practice of male circumcision. The movement has sparked a debate in this country, with Neil Howard and Rebecca Steinfeld arguing that it should be banned and Adam Wagner countering that a ban would amount to a disproportionate interference with freedom of religion.

In my view the key lies in the correct analysis of the issue.

Howard and Steinfeld make the point that female genital mutilation is banned and therefore, as an act of equality, male circumcision should be as well. The point is not so straightforward, because male and female genitalia, to state the extremely obvious, are not the same thing. Some more analysis is required.

Wagner approaches the question on the basis of the religious rights of the parents, which in legal terms are governed by art 9 of the European Convention on Human Rights. As set out in R (on the application of Bashir) v Independent Adjudicator and others [2011] NLJ 812, the application of art 9 involves three questions:

(i) whether the claimant’s rights under art 9 are engaged;

(ii) if so, whether there has been an interference with those rights;

(iii) if so, whether the interference is one that is both prescribed by law or necessary in the interests of public order, health or morals, and proportionate to the end pursued.

There is little doubt that a ban on circumcision would produce an affirmative answer to the first two questions. Assuming that the ban derived from an Act of Parliament it would obviously be prescribed by law. The question would then be whether it was necessary in the interest of public health or morals, and proportionate to that end.

Wagner argues that the answer is no: he does not accept that the medical evidence conclusively establishes that a ban is justified on health grounds. That being so, there would also be scope for disagreement as to whether the ban was proportionate, because circumcision is a firmly established tradition in several religions and a large number of adherents to those religions could be expected to react strongly to a ban.

Thus, on art 9 grounds, it is certainly arguable that parents should have the right to carry out the procedure.

In response I would argue that the art 9 analysis is inappropriate. This is because the religious rights of the parents are one thing, but of overriding importance are the rights of the child. The UN Convention on the Rights of the Child makes clear that the best interests of the children should be the overriding principle whenever children’s lives intersect with the law, and in my view that principle is indisputable.

The blunt fact is that circumcision not done on compelling medical grounds constitutes an assault. The onus is therefore on those wishing to carry out the procedure to show that it is nevertheless somehow in the child’s interest.

It is not possible to justify assaulting a child on the ground that the parents’ religion requires it – any more than the state should permit parents to withdraw female children from school on the ground that their culture or religion objects to girls becoming educated.

Imagine a strange cult that required children to be branded a la cattle farming with a red hot poker, or some other bizarre practice. No art 9 grounds would permit this. That circumcision might be seen as less extreme (or not) does not change the principle. Here is where the gender equality argument becomes relevant: the only difference between male and female circumcision is that the latter is banned because the harm is greater, but that is not a sufficient distinction – there is no “acceptable level of harm”.

One red herring needs to be dealt with. Smacking a child (controversial enough in itself) is an assault. But the argument in favour of doing so is that it is in the child’s interest to learn discipline. No comparable argument for circumcision exists other than medical grounds. It is not enough to say that it does not harm the child, it has to have a tangible positive benefit. If it does, then circumcision is indeed justifiable and I would abandon any objection.

The fact that male circumcision is a deeply held tradition that has lasted for thousands of years is relevant but not compelling. Slavery, sexism, blood sports and any number of other now banned and thoroughly discredited practices, cultures and beliefs could have been (and often were) defended on the same grounds.

Ultimately, practicing religion should be subject to the same standards as non-religious activities. There would be no acceptable justification for assaulting a child on secular grounds; religious practices should be held to the same standard.

One final point. See here for a magnificent judicial response to sexism in religion in the present context.

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6 Comments »

  • Sean Fear said:

    I’d have to disagree on this one. Doctors may disagree as to whether circumcision is beneficial or harmful, but the degree of hardship caused by male circumcision seems far too small to me to justify legislation in this area. For me, this is a case of de minimis non curat lex.

  • James Wilson said:

    I agree that the evidence isn’t very strong in either direction, suggesting the harm is indeed de minimus, but shouldn’t the operation be up to the child to decide (once they become an adult)?

  • Sean Fear said:

    In my view, the State should only want to intervene if there is a major harm being committed. Otherwise, leave families to their own devices.

  • James Wilson said:

    I must admit a few have taken me to task over this post. I would simpy reiterate:

    - the proper analysis is what is in the child’s interest;

    - in which case the issue is whether the harm is de minimus, as with, say, ear piercing, or serious, as with female genital mutilation.

    To be honest that is ultimately a question of medical evidence, on which I claim no expertise. But I would still maintain that it is not simply a question of parents’ freedom of religion: the rights of the child is the overriding concern.

  • Craig Rose said:

    There is one issue which seems to have been overlooked in this debate – a ban on male circumcision will cause massive harm to this country’s 350-year-old tradition of toleration towards its Jewish community. For Jews, male circumcision at 8 days old is not some outmoded optional extra: it is a fundamental practice, central to our identity as Jews. So much so that I would no longer feel welcome in this country if circumcision were banned.

    As to the argument presented for banning circumcision, I feel it is somewhat divorced from reality. I was circumcised when I was 8 days old in accordance with Jewish practice. It has caused me no problems whatsoever in the 47 years since. So, in my case, the ‘harm’ has not merely been de minimis: it has been non-existent. Nor has it ever occurred to me that I was the the victim of a (sexual?)assault by my parents who showered me with love throughout their lives.

  • James Wilson said:

    All of the articles linked above have attracted a large number of comments with very strong views in different directions. I suppose the liberal response has to lean towards allowing something in those circumstances because the evidence against it cannot be compelling (though that didn’t stop the foxhunting ban). But the main point I wanted to make is that any procedure involving a child has to be considered from the child’s point of view, not that of the parents’ rights – as someone who is not a medical expert I wouldn’t claim to have the last word on the actual answer.