Despite CPS guidance FGM law remains racist

Race is the prism through which women and girls wanting female genital alterations and surgeries are viewed in the UK. The FGM law treats people unequally, as many brown and black African and some Muslim women have attested over the years. People in Bristol have been at the receiving end recently and the damage caused to others is described here.

This became even more apparent on 17 October 2019 after the Crown Prosecution Service (CPS), the main public agency for conducting criminal prosecutions in England and Wales, published refreshed and expanded FGM guidance ‘to help prosecutors and police successfully bring more perpetrators to justice.’ It is very proud of this year’s  successful prosecution although I, and others, have doubts about the verdict.

FGM law

Since 1985, the law in England and Wales, revised in the 2003 Act, has criminalised anyone who ‘excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris’. This is commonly referred to as FGM. 

‘Designer vaginas’ and piercings were also categorised as FGM in the law. The appropriateness has come under scrutiny because of the increasing demand for cosmetic surgeries among adults, young people and teenagers. 

In July 2014 it was reported that 18-24’s are most likely to enquire about cosmetic genital surgeries, with around 1,150 women in this age group requesting surgery. The former Prime Minister Theresa May had warned then that doctors carrying out these surgeries could be committing a criminal offence, unless there was a physical or mental health justification.

Updated guidance

The CPS’ updated guidance advises prosecutors that the surgeries and piercings should no longer be considered, or in most cases prosecuted as FGM. They also advised that factors such as public interest, the age of the person, whether they provided fully informed and free consent, the level of physical or mental harm caused, and the impact on the individual’s quality of life now and in the future should be taken into account.

This is a welcome development because the demand for genital cosmetic surgeries in under 18’s has continued to increase, and the guidance attempts to clarify what was a grey area. I suspect however that beneficiaries are most likely to be predominantly caucasian, not ‘others’.  

The UK’s obsession with FGM is dangerous

Activists and professionals encourage each other and the public to believe that people from traditionally practising communities continually attempt new and devious ways of having their girls cut, even offering un-evidenced claims that babies and infants still undergo the practice. The National FGM Centre reports “anecdotal evidence from some communities that FGM laws can be circumnavigated by performing the procedure on girls at a much younger age”. This is likely to result in professionals viewing requests for genital surgeries from teenagers of African descent with suspicion. The conscious or unconscious racism that informed the drafting of the FGM law will persist.

Will the NHS stop reporting piercings as FGM?

An important possible development ensuing from the guidance could be that the NHS, which collects data about women and girls who’ve undergone FGM, may no longer report ‘piercings’ in under 18’s as FGM. 

NHS Digital classifies and records genital piercings as FGM Type 4. The justification: “While adult women may choose to have genital piercings, in some communities girls are forced to have them. The World Health Organisation currently defines all female genital piercings as a form of FGM. The data item FGM Type 4 Qualifier allows users to specify that the FGM was a piercing.”

But the latest annual report re-confirmed what many find hard to accept – that of the FGM cases undertaken in the UK, 85 per cent are genital piercings. Some of the remaining 15 per cent might also be piercings but the data is incomplete.

It would be refreshing were the NHS to report what appears to be the current situation – that FGM is no longer practiced in the UK and followed through on that.

Women remain infantilised

Unfortunately, the CPS didn’t see the need to recommend a revision to the aspect of the FGM law that does not treat all adult women alike in their right to consent to bodily modifications. The law infantilises female adults by defining them as children: in section 6(1) the term “girl” includes “woman”, rendering them incapable of giving informed consent.

Some women who have only ever known an infibulated external genitalia and like its aesthetic appearance, would prefer their external labia re-infibulated (re-sutured) after de-infibulation. But re-infibulation is not allowed. This was the basis for the unsuccessful legal and political FGM trial of a London based doctor in 2015.

It’s generally understood that the women and girls being referred to are predominantly of African descent from traditionally practising communities, not caucasians.

Unfortunately, some activists view this denial of bodily autonomy positively, believing the women incapable of giving informed consent to a cultural obligation, because they are being consciously or unconsciously coerced. John Stuart Mill’s principle ‘Over himself, over his own body and mind, the individual is sovereign’ seems not to apply to them. Being treated differently in law is therefore uncontested. Their freedom, curtailed by law, remains unchallenged.

Dr Shavisi, another critic of the FGM law has suggested: ‘Either by ignorance or design, its supposedly good intentions are ultimately marred with sexism and racism, since the legislation devalues the consent capacities of racialised adult women.’

Decriminalise FGM

Resorting to the criminal law does not seem the most effective way of tackling this unusual social problem in Western countries.  The most progressive way forward would be to decriminalise FGM.