Circumcision Symposium Online Publications

Debra DeLaet: Response to Stephen R. Munzer’s Article, “Secularization, Anti-minority Sentiment, and Cultural Norms in the German Circumcision Controversy”

Contemporary global politics have been characterized by unprecedented transnational migration flows that have contributed to cultural disruptions and conflicts in countries across the globe. Cultural pluralism has led to political and legal disputes regarding values, beliefs, and practices that are in conflict with the dominant culture in migrant-receiving countries. When socio-cultural differences emerge in countries in which the social fabric has been dramatically transformed by transnational migration, this dynamic can give rise to a politics that presumes negativity towards non-Western cultural norms and constructs non-Western migration populations as “alien” others.01Prakash Shah, Transnational Family Relations in Migration Contexts: British Variations on European Themes, in Ashgate Research Companion to Migration Law, Theory and Policy 599, 603–04 (S.J. Satvinder ed., 2013). A prominent example of this dynamic is the political contestation over genital cutting practices followed by some migrant populations in societies where the dominant culture views such practices as harmful.

The controversy over male circumcision that unfolded in Germany in recent years has taken place in a context of heightened global anxiety about transnational migration, an anxiety that, in Europe, has largely centered on Muslim populations.02Zan Strabac & Ola Listhaug, Anti-Muslim Prejudice in Europe: A Multilevel Analysis of Survey Data from 30 Countries, 37 Soc. Sci. Res. 268–286 (2008); Liz Fekete. Anti-Muslim Racism and the European Security State. 46 Race & Class 3–29 (2004). Stephen R. Munzer has written a piece that thoroughly and compellingly examines the cultural tensions behind a May 2012 ruling by a regional appellate court in Cologne finding that non-medical circumcision constituted interference with bodily integrity. The ruling would have criminalized any form of non-therapeutic genital cutting, including male circumcision rituals practiced by Jewish and Muslim populations in Germany, but the German Parliament subsequently invalidated this ruling by passing a statute that codified the right of parents to pursue ritual circumcisions for their sons. In his article, Professor Munzer identifies three primary drivers of this controversy: (1) Divisions over cultural norms, (2) Increasing secularization in post-WWII Germany, and (3) Anti-minority sentiment (especially focused on Jewish and Muslim populations). With cultural tensions at the center of the controversy, Munzer argues that the debate over male circumcision in Germany largely turns on issues related tolerance and multiculturalism.03Stephen Munzer, Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy, 37 U. Pa. J. Int’l L. 503–82 (2015).

The immediate roots of this legal and political controversy can be traced to the circumcision of a Muslim child that took place in 2010. The parents of the boy had taken their child to be circumcised by Dr. Omar Kezze, a physician from Syria, in his medical office in Cologne. A couple of days later, the mother took her child to the hospital for follow-up care due to bleeding at the site of the wound. Due to challenges involved with intercultural communication, medical personnel came to the erroneous conclusion that the circumcision had been performed in unsafe, non-medical conditions. Thus, hospital officials reported the case to the police, who subsequently charged Dr. Kezze with aggravated criminal battery. The trial court acquitted Dr. Kezze of these charges. The court further found that, although the procedure represented a violation of the boy’s bodily integrity and met the definition for criminal battery under German law, it was legally justified due to the consent of his legal guardians in accordance with the “best interest of the child” as defined under German code. The prosecution appealed the case to the regional appellate court in Cologne. The appellate court’s ruling diverged from the trial court, finding that circumcision was not a medically necessary procedure and disputing the characterization of circumcision as a traditional ritual practice. Grounded in these findings, the appellate court ruled that parental rights are restricted by the bodily integrity rights of children and by a child’s right to self-determination. Emphasizing the irreversibility of circumcision, the court also found that children’s rights to bodily integrity and self-determination should take priority over the religious rights of parents and, by extension, religious minorities. The appellate court affirmed Dr. Kezze’s acquittal, due to the absence of clear cut law at the time he conducted the procedure, but ultimately ruled that non-medical male circumcision was unlawful.04Id. at 511–20; Geoffrey Brahm Levey, Thinking about Infant Male Circumcision after the Cologne Court Decision 3 Global Discourse 326–31 (2013).

Negative public reaction to the court ruling was swift and strong. The opposition was led by leaders from Jewish and Muslim communities in Germany who decried the court ruling for undercutting religious rights and freedom as well as parental rights.05Reinhard Merkel & Holm Putzke, After Cologne: Male Circumcision and the Law. Parental Right, Religious Liberty or Criminal Assault? 39 J. Med. Ethics 444 (2013). To understand the religious motivations against the court ruling, one must read the decision within the German historical context. Notably, circumcision status was used under Nazi rule to identify and target Jewish people for repression.06Debra DeLaet, Genital Autonomy, Children’s Rights, and Competing Rights Claims in International Human Rights Law, 20 Int’l J. Child. Rts. 554, 564 (2011). Thus, condemnations of ritual male circumcision in Germany cannot be easily separated from the dark history of anti-Semitism in the country.07Richard Shweder, The Goose and the Gander: The Genital Wars, 3 Global Discourse 348–66 (2013).

Despite this opposition, German hospitals throughout the country stopped carrying out the procedures, and religious leaders expressed fear that they would be prosecuted for conducting ritual circumcision ceremonies. Although opposition ran high, there also was significant public support for the ban on ritual male circumcision. In fact, a poll conducted in July 2012 indicated that a plurality of Germans favored the ban. Yet, organized support was limited, mostly coming from medical professionals, academics, and lawyers.08Munzer supra note 3, at 520–28.

Major German political parties, including the Christian Democratic Union, the Free Democratic Party, and the Green Party, responded quickly to the well-organized opposition in the Jewish and Muslim communities and condemned the ban. The Bundestag moved quickly and, by July 2012, had passed a resolution supporting the right of Muslim and Jewish communities to continue to practice ritual male circumcision and calling for further clarification in German law. In December 2012, the Bundestag passed a law that codified the legality of ritual male circumcision, specifically recognizing the rights of parents to consent to non-medical circumcisions for the minor male children in their custody. In order to balance its prioritization of parental and religious rights with the interests of children, the law specifies that circumcisions must be conducted in accordance with medical standards and with adequate and effective pain management. The law also specifies that ritual male circumcisions conducted by persons selected by religious communities must be conducted within the first six months of life.09Munzer, supra note 3, at 545–47.

As Professor Munzer indicates, the underlying cultural tensions driving the political controversy over male circumcision in Germany continue to be manifested in the application of the 2012 law. Cases involving divergent parental preferences regarding the circumcision of male children have emerged and typically involve situations in which parents represent different ethnic and religious backgrounds. The courts have not identified any uniform standards to apply in cases of parental disagreement, and rulings have focused on issues related to custody, interpretations of parental motivations, and technicalities. German case law has not resolved underlying tensions about how to balance cultural tensions and competing rights claims when parents do not agree.10Merkel & Putzke supra note 5, at 5–6. In this way, the German case illustrates the ways in which transnational migration and multiculturalism manifest not only in normative differences across cultures but also in contested ideologies, values, and gender norms within families.

Professor Munzer’s article provides a comprehensive overview of the male circumcision controversy in Germany that correctly highlights the role that divisions over cultural norms played in shaping it. Although Professor Munzer’s emphasis on culture is critical, he does not pay sufficient attention to gender as another central explanatory variable that fundamentally shapes the ways in which cultural disagreement manifests in multicultural societies.11See generally Eleonore Kofman, Albert Kraler, Martin Kohli, & Camille Schmoll, Gender, Generations and the Family in International Migration (2011); Patricia Pesar & Sarah Mahler, Transnational Migration: Bringing Gender in, 37 Int’l Migration Rev. 812–46 (2003). Professor Munzer includes a brief section highlighting the divergent treatment of male circumcision and female genital cutting (FGC) in German law. A deeper exploration of this theme would have revealed important dimensions of the controversy over male circumcision in Germany as a manifestation of cross-cultural conflict.

As the nascent application of the 2012 law suggests, potential legal disputes over the practice of male circumcision will involve issues that connect to the concept of gender in at least two fundamental ways. First, discrepancies between the legality of male circumcision and legal prohibitions against female genital cutting create the potential for legal challenges resting on claims of unequal treatment under the law. 12J. Steven Svoboda, Promoting Genital Autonomy by Exploring Commonalities between Male, Female, Intersex, and Cosmetic Female Genital Cutting 3 Global Discourse 237–55 (2013); Marie Fox & Michael Thomson, Short Changed? The Law and Ethics of Male Circumcision 13 Int’l J. Child. Rts. 161–82 (2005). Understanding such challenges requires engaging with social constructions of gender that enable the differential treatment of boy and girl children to seem normal and acceptable. Second, legal disputes over ritual male circumcision likely will continue to involve divergent parental preferences, indicating that the sites of legal contestation over traditional cultural practices occur not just at the borders between cultures and religious groups but within families.

Regarding equal treatment under the law, a more in-depth comparison of German laws governing male circumcision and female genital cutting is instructive. In contrast to the legality of ritual male circumcision in Germany, female genital cutting (FGC) is prohibited under German law.13This article will primarily use the neutral terminology “female genital cutting” to describe the associated practices discussed in this reply. Because it is the terminology used by relevant legal and political bodies, the article will use the term “female genital mutilation” when referring specifically to German law. The World Health Organization uses both terms interchangeably; I will do likewise when referring to the WHO’s work. Historically, FGM has been banned in Germany under general provisions of the penal code governing criminal offences involving grievous bodily injury, including injuries involving the loss of essential body parts or infertility, as well as provisions related to maltreatment by parents or custodial persons. In 2013, the Bundestag passed a law explicitly condemning FGM providing criminal penalties, including sentences ranging from one to fifteen years in prison, for any person who mutilates the external genitalia of a girl or a woman. These provisions apply both domestically and extraterritorially.14European Institute for Gender Equality, Current Situation of Female Genital Mutilation in Germany (2013), available at http://eige.europa.eu/sites/default/files/documents/Current%20situation%20and%20trends%20of%20female%20genital%20mutilation%20in%20Germany_EN.pdf.

The 2013 law applies to all categories of FGC/FGM identified by the World Health Organization. These categories describe the wide range of practices, varying significantly in terms of their invasiveness, that are considered to constitute genital cutting.15World Health Organization, Eliminating Female Genital Mutilation: An Interagency Statement 4 (2008). Notably, the first WHO category, the most commonly practiced form of FGC globally, involves a range of practices, including the removal of the prepuce, or outer skin, of the clitoris (Type 1a) and/ or the partial or total removal of the clitoris (Type 1b), that are comparable to ritual male circumcision as it is commonly practiced. The second category (Type 2) includes cutting practices that excise the clitoris coupled with partial or total removal of the labia minor, the inner folds of the vulva, and is the predominant form of cutting only in Burkina Faso. The third category (Type 3) involves the partial or total excision of all of the external female genitalia, followed by stitching intended to narrow the vaginal opening. Commonly referred to as infibulation, this category represents the most extreme and invasive form of FGC. According to the UNICEF, only Eritrea and the Sudan have high rates of third category FGC.16Fact Sheet No. 23: Harmful Traditional Practices Affecting the Health of Women and Children, United Nations Office of the High Commissioner for Human Rights, http://www.unhchr.ch/html/menu6/2/fs23.htm (last visited Aug. 1, 2007).

As Munzer notes, the inconsistency is “problematic because it might violate the German constitutional guarantee of equal treatment of the sexes.”17Stephen Munzer, supra note 3, at 560. Munzer hypothesizes that populations in which FGC is commonly practiced “often prefer highly invasive practices.” He then acknowledges that “it is possible” that some groups might practice the less invasive forms of FGC that are comparable to male circumcision. In fact, WHO data indicate that actual practice is the inverse to Munzer’s hypothesized rates of prevalence. The WHO taxonomy reporting prevalence of different types of FGC/ FGM bears repeating. The most extreme and invasive forms of FGM (Type 3) are prevalent only in Eritrea and the Sudan. The next most invasive form of FGM (Type 2), which involves clitoral excision and the removal of other parts of the external genitalia, is predominant only in Burkina Faso. The forms of FGC that are most comparable to male circumcision (Type 1) are the most common form of FGC globally. Thus, the differential treatment of male circumcision and FGC under German law involves a real—and not simply a hypothesized—tension that raises questions about equal treatment of the sexes is more real than imagined.

The differential treatment of ritual male circumcision and FGC is commonplace across the globe, especially in non-Western countries that almost universally condemn FGC/ FGM. The fact that this tension is rarely questioned, in Germany or elsewhere, can be traced to social constructions of gender that lead to differential treatment of boy and girl children even in regards to practices that are similar in form and function.18Debra DeLaet, Framing Male Circumcision as a Human Rights Issue?: Contributions to the Debate over the Universality of Human Rights, 8 J. Hum. Rts. 405–26 (2009); Robert Darby & J. Steven Svoboda, A Rose by any other Name: Rethinking the Similarities and Differences between Male and Female Genital Cutting, 21 Med. Anthropology Q. 301–23 (2007); J. Steven Svoboda, supra, note 12; Fox & Thomson, supra, note 12. The point here is not to resolve this tension but to underscore the importance of gender in fully understanding the dimensions of disagreement regarding cultural conflicts in multicultural societies.

The second primary area where legal disputes are likely to arise over male circumcision involves divergent parental preferences, locating the site of potential division within families as well as across cultures. In examining the dimensions of disagreement in these cases, it is important to consider the way that gender, as well as ethnicity and religion, shape court decisions and societal responses. Commonly, social policies that govern issues that pertain to cultural minorities and immigration populations fundamentally shape conceptions of “the family” and “contribute to the construction and reconstruction of the boundaries between the public and the private and between productive and reproductive spheres.”19Eleonore Kofman, Albert Kraler, Martin Kohli, & Camille Schmoll, supra note 3, at 14.

Cultural conflicts are often simultaneously intergenerational and intra-familial conflicts that are shaped by divisions regarding the ways in which gender identities and practices will be constructed in a given society.20Id. at 35. The family is a site where conflict over the politics of gendered social orders play out. Thus, it will be important for scholars to pay attention to the gender as well as cultural dynamics that shape the construction of political, social, and legal boundaries drawn by legal decisions governing cultural practices like genital cutting.

Politics in multicultural societies involve contestation over intercultural borders. Intercultural conflict takes place not only between cultures but within bounded familial and gendered social orders. For this reason, considerations of gender—as well as culture—are essential to understanding intercultural conflict over traditional practices like the controversy over male circumcision in Germany. Professor Munzer has written a strong article that effectively delineates the cultural sources of this controversy. Delving deeper into the gendered dimensions of this controversy enhances our understanding of this and similar cultural conflicts in significant ways.

Political and legal controversies involving cultural disagreement and difference typically will have been shaped by socially constructed gender norms as well. Thus, it is important for scholars and legal analysts to critically consider gender as well as culture when navigating these controversies. If our analyses focus on religion and cultural tensions at the exclusion of gender, we may render explanations that are exclusionary and potentially disadvantageous to groups who might be vulnerable to discrimination under such exclusionary analyses.

References   [ + ]

01. Prakash Shah, Transnational Family Relations in Migration Contexts: British Variations on European Themes, in Ashgate Research Companion to Migration Law, Theory and Policy 599, 603–04 (S.J. Satvinder ed., 2013).
02. Zan Strabac & Ola Listhaug, Anti-Muslim Prejudice in Europe: A Multilevel Analysis of Survey Data from 30 Countries, 37 Soc. Sci. Res. 268–286 (2008); Liz Fekete. Anti-Muslim Racism and the European Security State. 46 Race & Class 3–29 (2004).
03. Stephen Munzer, Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy, 37 U. Pa. J. Int’l L. 503–82 (2015).
04. Id. at 511–20; Geoffrey Brahm Levey, Thinking about Infant Male Circumcision after the Cologne Court Decision 3 Global Discourse 326–31 (2013).
05. Reinhard Merkel & Holm Putzke, After Cologne: Male Circumcision and the Law. Parental Right, Religious Liberty or Criminal Assault? 39 J. Med. Ethics 444 (2013).
06. Debra DeLaet, Genital Autonomy, Children’s Rights, and Competing Rights Claims in International Human Rights Law, 20 Int’l J. Child. Rts. 554, 564 (2011).
07. Richard Shweder, The Goose and the Gander: The Genital Wars, 3 Global Discourse 348–66 (2013).
08. Munzer supra note 3, at 520–28.
09. Munzer, supra note 3, at 545–47.
10. Merkel & Putzke supra note 5, at 5–6.
11. See generally Eleonore Kofman, Albert Kraler, Martin Kohli, & Camille Schmoll, Gender, Generations and the Family in International Migration (2011); Patricia Pesar & Sarah Mahler, Transnational Migration: Bringing Gender in, 37 Int’l Migration Rev. 812–46 (2003).
12. J. Steven Svoboda, Promoting Genital Autonomy by Exploring Commonalities between Male, Female, Intersex, and Cosmetic Female Genital Cutting 3 Global Discourse 237–55 (2013); Marie Fox & Michael Thomson, Short Changed? The Law and Ethics of Male Circumcision 13 Int’l J. Child. Rts. 161–82 (2005).
13. This article will primarily use the neutral terminology “female genital cutting” to describe the associated practices discussed in this reply. Because it is the terminology used by relevant legal and political bodies, the article will use the term “female genital mutilation” when referring specifically to German law. The World Health Organization uses both terms interchangeably; I will do likewise when referring to the WHO’s work.
14. European Institute for Gender Equality, Current Situation of Female Genital Mutilation in Germany (2013), available at http://eige.europa.eu/sites/default/files/documents/Current%20situation%20and%20trends%20of%20female%20genital%20mutilation%20in%20Germany_EN.pdf.
15. World Health Organization, Eliminating Female Genital Mutilation: An Interagency Statement 4 (2008).
16. Fact Sheet No. 23: Harmful Traditional Practices Affecting the Health of Women and Children, United Nations Office of the High Commissioner for Human Rights, http://www.unhchr.ch/html/menu6/2/fs23.htm (last visited Aug. 1, 2007).
17. Stephen Munzer, supra note 3, at 560.
18. Debra DeLaet, Framing Male Circumcision as a Human Rights Issue?: Contributions to the Debate over the Universality of Human Rights, 8 J. Hum. Rts. 405–26 (2009); Robert Darby & J. Steven Svoboda, A Rose by any other Name: Rethinking the Similarities and Differences between Male and Female Genital Cutting, 21 Med. Anthropology Q. 301–23 (2007); J. Steven Svoboda, supra, note 12; Fox & Thomson, supra, note 12.
19. Eleonore Kofman, Albert Kraler, Martin Kohli, & Camille Schmoll, supra note 3, at 14.
20. Id. at 35.

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