Circumcision Symposium Online Publications

The German Circumcision Controversy – And Beyond

*Distinguished Research Professor of Law, University of California, Los Angeles. My thanks go to Jeremy Peretz for excellent research assistance and stimulating conversation on this reply. I am also grateful to Alison Munzer for many comments and suggestions, to Sydney Truong for her assistance, and to the Academic Senate and the Dean’s Fund at UCLA for financial support. © Stephen R. Munzer

Professor Melanie Adrian, Professor Debra L. DeLaet, and Mr. Brian D. Earp and Dr. Robert Darby have responded thoughtfully to an article I wrote on the German circumcision controversy of 2012 and its immediate aftermath.01Stephen R. Munzer, Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy, 37 U. Pa. J. Int’l L. 503 (2015) [hereinafter Munzer, Circumcision Controversy]. The case that ignited the controversy is Judgment of May 7, 2012, Landesgericht Köln [LGK] [Cologne Regional Court], 151 Ns 169/11 (Ger.) (holding that a circumcision without medical indication of a four-year-old Muslim boy is a criminal assault under § 223 and §224 StGB despite his parents’ consent, though in the circumstances the physician charged with the offense is to be acquitted owing to an unavoidable-mistake-of-law defense under § 17 StGB (Verbotsirrtum)), reversing Judgment of Sept. 21, 2011, Amtsgericht Köln [AmK] [Cologne Trial Court], 528 Ds 30/11 (Ger.) (acquitting the physician on other grounds). The Strafgetzbuch (“StGB”) is the German Criminal Code. For English translations of the district (trial) and regional (appellate) court opinions, see Durham University, District Court of Cologne – Judgment of 7 May 2012 on male circumcision for religious reasons, Islam, Law, and Modernity (Jul. 10, 2012) https://www.dur.ac.uk/ilm/newsarchive/?itemno=14984. The controversy concerned ritual circumcisions done for religious reasons without medical indication.03This reply uses the phrases “circumcision without medical indication” and “nontherapeutic circumcision” interchangeably. Virtually all ritual circumcisions are nontherapeutic circumcisions, but not vice versa. (I want to allow for the possibility that a ritual circumciser might see a medical problem that circumcision would solve and intend both to perform the ritual and to solve the medical problem). Secular circumcisions in the United States, which are generally done for hygienic, prophylactic, or aesthetic reasons, are nontherapeutic but not ritual circumcisions. A common medical reason for circumcision is paraphimosis (constriction of the “head” (glans) of the penis by an unduly tight foreskin). I argued that secularization, cultural norms, and anti-minority sentiment were all factors in both the court decision attempting to criminalize such a circumcision and the ensuing controversy. I did not try there, and do not try here, to stake out an independent position on the merits and downsides of nontherapeutic circumcision. This reply is my effort to react, in a straightforward and constructive manner, to their commentary. Collectively their comments will push forward future work of mine in this area, for which I am most grateful.

I begin with Adrian, then discuss DeLaet, and finally take up Earp and Darby. The topics covered are the Convention on the Rights of the Child; the possible priority of anti-minority sentiment in the German appellate opinion; the roles of sex and gender; the World Health Organization (“WHO”); concepts of harm; sexual and psychological harm; and the nature of the foreskin. This reply has some difference in tone because Adrian and DeLaet respond directly and exclusively to my article whereas Earp and Darby, though responding here and there to my article, mainly articulate an independent position on subjective harms linked to nontherapeutic circumcision.

1. Adrian on International Law and the Priority of Anti-Minority Sentiment

Adrian is a well-known and highly regarded scholar of the reception of religious minorities in Western Europe, with specific attention to Muslims, use of the veil in France, and religious freedom.02See, most recently, Melanie Adrian, Religious Freedom at Risk: The EU, French Schools, and Why the Veil was Banned (Springer, 2016). She is particularly interested in the integration of Muslim immigrants in Western liberal democracies. Her knowledge of religious minorities in Europe, especially in France and Germany, is deeper than my own.

Adrian’s response in this forum is notable for its attention to international law.04Melanie Adrian, Response to Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy, 38 U. Pa. J. Int’l L. Online 1, 2 (2017) (single-spaced draft forwarded to me on Jan. 16, 2017) [hereinafter Adrian, Response]. The U.N. Convention on the Rights of the Child (the “CRC”) was adopted in 1989 and entered into force in 1990, and, Adrian points out, Germany ratified the CRC in 1992.05Id. at 2. She does not inspect the language of the CRC but moves instead to a communication from the Committee on the Rights of the Child, which oversees the implementation of the CRC. She quotes from a paragraph in this communication that reads in part: “[The Committee] . . . recommend[s] that the State party take effective measures, including training for practitioners and awareness-raising, to ensure the health of boys and protect against unsafe medical conditions during the practice of male circumcision.”06Id. at 2-3 (citing United Nations Convention on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: South Africa, ¶ 33, U.N. Doc. CRC/C/15/Add.122 (Feb. 22, 2000)). See also Report of the Committee on the Rights of the Child, May 8, 2000, ¶ 1464, U.N. Doc. A/55/41; GAOR, 55th Sess., Supp. No. 41 (2000), From this language, Adrian infers that the Committee does not repudiate or ban circumcision but rather presupposes that the CRC permits it; the Committee is just trying to make it safer.07Adrian, Response, supra note 4, at 3 & n.8 (citing United Nations Special Rapporteur for Religious Freedom and Belief, Interim Report, ¶ 73, U.N. Doc. A/70/286 (Aug. 5, 2015)).

Adrian’s argument may move too quickly here. It would have been useful to start by looking at the language of the CRC itself. Having combed through this Convention more than once, I do not see that it either requires, forbids, or explicitly permits circumcision without a medical indication. Had the final draft of the CRC included a requirement or a prohibition, it is doubtful that it would have been adopted, because some States would have bridled at a requirement and other States would have bridled at a prohibition. Nontherapeutic circumcision has become, among other things, an international political issue. In that respect, it is a bit behind female genital cutting (“FGC”), which has been, among other things, an international political issue for some years.

There is, moreover, an argument that at least one provision of the CRC is either vague or ambiguous in its implications for the permissibility of nontherapeutic circumcision. Article 24(3) says: “State Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.”08Convention on the Rights of the Child, art. 24(3), opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990) [hereinafter “CRC”]. What does the phrase “prejudicial to the health of children” mean in this provision? John Tobin gives it a broad meaning: “any aspect of a traditional practice which in any way has a negative impact on the health of a child, whether mental or physical, temporary or permanent, must be abolished.”09John Tobin, The Right to Health in International Law 307 (2012). See also John Tobin, The International Obligation to Abolish Traditional Practices Harmful to Children’s Health: What Does It Mean and Require of States?, 9 Hum. Rts. L. Rev. 373, 378 (2009) [hereinafter Tobin, Children’s Health]. This broad meaning seems to rest on an implausible understanding of the language of Article 24(3) and the CRC generally, because such phrases as “any aspect,” “in any way,” “mental or physical,” “temporary or permanent,” and “abolished” could end up torpedoing a great many traditional practices, including ritual circumcision. Earp and Darby offer a more careful interpretation of Article 24(3) than Tobin, which leaves uncertain the application of this article to ritual circumcision.10Brian D. Earp & Robert Darby, Circumcision, Sexual Experience, and Harm, 38 U. Pa. J. Int’l L. 1, 50-53 (2017) (double-spaced revision forwarded to me on Jan. 16, 2017) [hereinafter Earp & Darby, Circumcision, Sexual Experience, and Harm]. They question Tobin’s treatment of the objectivity of medical knowledge and his discussion of gender bias.11Id. at 51-52.
They are sensitive to the politics of male versus female genital cutting, but do not mention freedom of religion as another dimension of this issue.12Id. at 52-53. It is interesting, though, that Tobin refers to the possibility of “mental” negative impact, which jibes with Earp and Darby’s discussion of psychological and sexual harm traceable to circumcision.

For the moment, the fairest interpretation is that the CRC neither requires, nor forbids, nor explicitly permits nontherapeutic circumcisions, but it may well implicitly permit such circumcisions. The Committee on the Rights of the Child is one, but not the only, interpreter of the CRC. The Special Rapporteur on religious freedom and belief is a lower-ranking interpreter than the Committee, and an off-the-cuff comment by the Special Rapporteur has even less interpretive weight.13Adrian, Response, supra note 4, at 3, mentions an interim report (cited in note 7 supra), by Special Rapporteur Heiner Bielefeldt. He stated that “no state has outlawed the practice [circumcision] as such, which would be a far-reaching intervention into parental rights” and elsewhere commented that the Cologne appellate decision was “nonsense.” He may be correct, but the interim report and his comment do not amount to much of an argument.

Even if Adrian’s argument is too swift, she is probably right that the prevailing understanding of the CRC is that it implicitly permits ritual circumcision, and that the Committee on the Rights of the Child is trying to improve the medical safety of ritual circumcision. Whether the prevailing understanding is the best understanding, all things considered, is another matter. She is also right that the Cologne appellate court should have considered whether Germany’s ratification of the CRC and other international human rights treaties altered German law on the permissibility of ritual circumcision.

The balance of Adrian’s response concerns whether anti-minority sentiment had a more powerful role than I allowed. My article listed three “factors” in the court decision and the controversy over the decision: secularization, cultural norms, and anti-minority sentiment. I did not assign weights to these factors. Had I done so, it would have been necessary to show, for example, whether secularization was less weighty than cultural norms in the decision reached by the appellate court, and whether cultural norms were less weighty than secularization in the ensuing debate. She would seemingly give greater weight to anti-minority sentiment, or to use her language she would seemingly “prioritize” anti-minority sentiment.14Adrian, Response, supra note 4, at 1.

Adrian expresses herself cautiously, and it is important to state her position carefully. In one place she writes, given the appellate court’s “audacious assumptions regarding circumcision, it may be fitting to prioritize Munzer’s final point [about] . . . anti-minority sentiment . . . which framed German circumcision discussions during these years.”15Id. (emphasis added). Later she refers to “a particularly concerning degree of ignorance, – or perhaps even arrogance, – from the German judiciary.” Id. at 4. This sentence appears to run together (1) priority in the judicial decision making process and (2) priority in the academic, legislative, political, public, and private discussions of that decision. In the final sentence of her response, Adrian writes, “I argue that it is fitting, given the highly suspicious legal arguments made in the appellate case and notwithstanding the speed with which the German Parliament reversed course, to read that case as an example of anti-minority sentiment at its worst.”16Adrian, Response, supra note 4, at 5 (emphasis added). This sentence addresses the judicial decision-making process but does not mention the various discussions that made up the subsequent controversy.

I shall be even more cautious than Adrian: we do not have enough information to say that one of the three factors is weightier than, or has priority over, the others. Adrian does not discuss whether secularization or cultural norms are less weighty than I suggested. Her response, then, lacks a comparative perspective on each of these factors. It would appear, moreover, that she focuses chiefly on the manifold defects in the opinion of the Cologne appellate court. She does not offer an account of how much larger a role than I suggested anti-minority sentiment played in the multiple discussions that constituted the controversy in Germany after the decision become public.17Munzer, Circumcision Controversy, supra note 1, went to press in late 2015. Since then, most Germans seem much more interested in the wave of Muslim immigration than in Islamic circumcision. Among far-right political parties, however, the Alternative für Deutschland (“AfD”) was represented in more than half of the German State parliaments by 2016. Alternative for Germany, https://en.wikipedia.org/wiki/Alternative_for_Germany (last visited Jan. 30, 2017). So, for simplicity, I will take her to suggest that it is only in Judge Beenken’s arguments in the opinion and decision that anti-minority sentiment took priority over secularization and cultural norms.

But not enough information exists to clinch even this narrowed claim. Like Adrian, I am stunned that Judge Beenken had such a tin ear for how readers of his opinion would perceive his assumptions and arguments.18Adrian picks these assumptions and arguments apart nicely. Adrian, supra note 4, at 4-5. True, the case involved a young Muslim boy. But it is hard to believe that the judge could have been unaware that Jews also practice ritual circumcision, and that Germans still struggle with the legacy of the Holocaust and their treatment of Jews until the very end of World War II.

Still, it is perilous to try to read off Judge Beenken’s attitudes from his opinion. The phrase “anti-minority sentiment” intimates, in this context, both a thought and an attitude antagonistic to Muslims and Jews. Spoken and written words can sometimes reveal both the thought and the attitude, but often the dry language of a judicial opinion leaves only a trace, if that, of any attitude or related feeling or emotion. The judge wrote in part:

According to the prevailing opinion within the academic commentary the circumcision of a boy unable to consent to the operation is not in accordance with the best interests of the child even for the purposes of avoiding a possible exclusion from their [sic] religious community and the parental right of education. The fundamental rights of the parents are restricted by the fundamental right of the child to bodily integrity and self-determination. . . . The principle of proportionality must be taken into account when striking the balance between these rights.19Judgment of May 7, 2012, LGK, supra note 1, part III of the opinion (English translation) (internal citations omitted).

This passage is not on its face a specimen of anti-Muslim sentiment. The judge could have struck the balance between competing rights differently from the way he did. Certainly he underestimated the effects of possible exclusion, or second-class status, of uncircumcised males in Muslim communities. This underestimation is a defect of thought but not necessarily indicative of a negative attitude on his part. Anti-minority sentiment is not, for me, the same as implicit bias. The latter is a relatively unconscious and relatively automatic characteristic of prejudiced judgment and behavior, whereas anti-minority sentiment requires a more conscious and self-aware attitude and related emotions.20For an excellent survey, see Michael Brownstein, Implicit Bias, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2015), available at https://plato.stanford.edu/entries/implicit-bias/ (last visited Jan. 29, 2017). If they differ, then implicit bias, depending on exactly how that term is defined, might be a different but related explanation of the tenor of the judge’s opinion.

Furthermore, Adrian does not mention the ways judges are trained in Germany and the tenor of their judicial opinions.21Munzer, Circumcision Controversy, supra note 1, at 519-20, discusses these matters briefly. Whereas most judges in the United States and Canada often have considerable exposure to law practice or politics before ascending to the bench, German judges emerge from an additional judicial clerkship track, are neither appointed nor elected, advance in their careers in a meritocratic and generally apolitical system, and are basically professional, respected civil servants. Reasoning in German legal opinions often strikes those brought up in common law systems as abstract, top-down, and unattuned to practical realities. I mention these matters not to justify Judge Beenken’s opinion, but to suggest that we lack sufficient evidence to support a claim that it is an example of anti-minority sentiment. Owing to the lack of a comparative analysis of factors, we do not have enough information to say that any such sentiment was more important in his opinion and decision than secularization or cultural norms, or that “it is fitting” to say it was more important. It remains the case, however, that Adrian could ultimately be correct in assigning priority to anti-minority sentiment.

2. DeLaet on Gender and FGC Practices

DeLaet is a political scientist by training who, over the course of her career, has written widely on human rights, children’s rights, global health, and world politics. I think highly of her article on genital autonomy and children’s rights.22Id. at 543 n.184 (citing Debra L. DeLaet, Genital Autonomy, Children’s Rights, and Competing Rights Claims in International Human Rights Law, 20 Int’l J. Child. Rts. 554 (2012)). Her comments on my article are fair-minded.23Debra L. DeLaet, Reply to Stephen R. Munzer’s “Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy,” 38 U. Pa. J. Int’l L. Online yy (2017) (double-spaced typescript forwarded to me on Jan. 16, 2017) [hereinafter DeLaet, Reply]. I am sympathetic to her point that divergent parental preferences regarding circumcision often involve parents who come from different ethnic and religious backgrounds.24Id. at 5. I agree with her that “[c]ultural conflicts are often simultaneously intergenerational and intra-familial conflicts that are shaped by divisions regarding . . . gender identities and practices” in society, among other things.25Id. at 10. Anyone who engages in a full-bore discussion of nontherapeutic circumcision versus female genital cutting (“FGC”) should think about gender,26Id.
or to put it in a fashion more congenial to my way of thinking, both sex and gender.

DeLaet writes that “[a]lthough 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.”27Id. at 6. On the one hand, I do not agree that gender is a fourth “central explanatory variable” – a “factor,” in my language. Rather, gender is embedded in cultural norms in German society and in various ways in all other societies. So we still have the original three factors, and gender standing alone is not one of them. I would, though, prefer to say cultural norms pertaining to sex as well as gender. For me, sex (female or male, or perhaps other) is biological, whereas gender (girl or boy, woman or man, or other) is social, even if some individuals have ambiguous genitalia, physical intersex conditions, or transgender or queer social presentations. I do not think that sex is always a matter of plain biological fact, for how we conceive of the sex of individuals can turn on different models or interpretations.28See, e.g., Thomas Laqueur, Making Sex: Body and Gender from the Greeks to Freud (1990) (arguing that a one-sex model gave way to a two-sex model in the eighteenth century) [hereinafter Laqueur, Making Sex]. A key reason for insisting on sex as well as gender is that both circumcision and FGC modify sex organs.

On the other hand, DeLaet is right to say that I might have paid more attention to gender, or sex and gender, if you will, than I did. She says this for two reasons that relate to the new German statute pertaining to circumcision that legislatively overruled the 2012 Cologne appellate decision and a 2013 statute that criminalized FGC.29The 2012 statute added § 1631d to the German civil code (Bürgerliches Gesetzbuch, or BGB) (Ger.). It gives parents the right, with some limitations, to consent to the nontherapeutic circumcision of their male child provided that it is done in accordance with medical standards. It also permits skilled ritual circumcisers to do the procedure in the first six months of life. The 2013 statute added § 226a StGB to the criminal code which makes FGC/FGM a separate offense with a maximum sentence of 15 years (Ger.). Munzer, Circumcision Controversy, supra note 1, at 545-46, translates the 2012 statute into English. I have not seen an English translation of the 2013 statute.

Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 10 n.22, point to my bad habit, in Munzer, Circumcision Controversy, supra note 1, passim, of using FGM instead of FGC. FGM is not value-neutral. It is sometimes appropriate in reporting the views of the World Health Organization, which often uses FGM or FGM/C, and in describing § 226a StGB, which uses the German word Verstümmelung (“mutilation”). DeLaet, Reply, supra note 22, at 6 n.1, is right to use the neutral term FGC except when referring to German law or WHO publications. First, family law issues put gender, or sex and gender, front and center. She writes that “legal disputes over ritual male circumcision likely will continue to involve divergent parental preferences.”30DeLaet, Reply, supra note 22, at 7 n.13. These disputes “over traditional cultural values occur not just at the borders between cultures and religious groups but within families.”31Id.

I agree that one can anticipate more such disputes, but disagree that I ought to have bestowed more attention on gender differences within families than I did. My article discussed German family law litigation over circumcision when one parent, but not the other, wants to circumcise their child.32Munzer, Circumcision Controversy, supra note 1, at 549-51, 554-55, 577. By my lights, the discussion sufficed in the context of the German controversy in 2012-2014, which centered on whether nontherapeutic circumcision should be allowed at all. In that context, disagreement within families was a side issue. It would, though, be prudent for those whose primary research interest is German family law to follow DeLaet’s suggestion. It would be intriguing to see how German judges have decided later cases in which parents disagree over circumcision.

In addition, Earp and Darby bring out a different role that gender sometimes plays in nontherapeutic circumcision.33Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 50. Some cultures regard girls and women as more vulnerable to harm than boys and men.34Id. Such cultures often regard painful rites of passage as more suited to masculine than feminine ideals.35Id. In the United States, cultural views such as these might easily regard FGC as dreadful but see circumcision as tolerable. Yet, prior to the Cologne appellate decision, the gender differences just mentioned were not in this context a major part of German culture, which was generally against both male and female genital cutting.36In the relevant time period only a few commentators seized on the gender differences. See, e.g., Tonio Walter, Das unantastbare Geschlecht [The Sacrosanct Sex], Zeit Online [July 4, 2013], available at http://pdf.zeit.de/2013/28/genitalverstuemmelung-gesetz-frauen.pdf (arguing that legalizing male circumcision while punishing the removal of parts of the clitoral hood constitutes sex discrimination because both procedures are comparable in degree), discussed in Munzer, Circumcision Controversy, supra note 1, at 560-61. By contrast, the Cologne appellate court made little mention of gender in its opinion. Almost all of the academic and public debate centered, in a noncomparative way, on whether nontherapeutic male circumcision was an unreasonable practice or something to be allowed in a multicultural society. See Munzer, Circumcision Controversy, supra note 1, at 520-44 (reporting on the debate in Germany). So Germany then was dissimilar to the United States, and this particular gender difference played no role in the Cologne appellate decision. It was only in late 2012 and in 2013 that two new statutes altered the scene in Germany.

The second reason given by DeLaet for concentrating more on gender also merits attention. She suggests that

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. Understanding such challenges requires engaging with social constructions of gender that enable differential treatment of boy and girl children to seem normal and acceptable.37DeLaet, Commentary, supra note 22, at 6 (citation omitted).

A possible reaction to DeLaet’s suggestion is that if no one had uttered a peep after the Cologne appellate decision, many German politicians might have rested content with outlawing all nontherapeutic circumcisions.38I am not saying that it would have been justified for German politicians and other Germans to have remained silent on this decision. And they would have had no incentive to draft the statute specifically criminalizing FGC any differently than they did. Talk of unequal treatment and social constructions of sex and gender would then have been unnecessary. As events played out, however, there was a fire-storm of protest against the Cologne appellate decision, and German politicians and businesspersons saw that the case was becoming a public relations disaster. Only after Germany reversed course by allowing many ritual circumcisions but specifically prohibiting FGC did it become necessary to talk about unequal treatment and issues of sex and gender.

What, then, would DeLaet have us do? She says,

The differential treatment of ritual male circumcision and FGC is commonplace across the globe . . . . 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. 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.39Id. at 9.

Clearly it is important to grasp what we should be doing (underscoring the importance of sex and gender) before offering a solution (resolving the tension). But questioning the tension is not as rare as DeLaet suggests. Some Western European countries and institutions have questioned ritual circumcision, even if, post-Cologne, none has banned the practice.40For instance, the Royal Dutch Medical Association (“KNMG”) concluded, among other things, that “[t]here is no convincing evidence that circumcision is useful or necessary in terms of prevention or hygiene” and “[n]on-therapeutic circumcision of male minors conflicts with the child’s right to autonomy and physical integrity.” KNMG, Non-Therapeutic Circumcision of Male Minors 4 (May 27, 2010), available at http://www.circumstitions.com/Docs/KNMG-policy.pdf. They could now be gun-shy in light of Germany’s foray into this territory. An increasing number of scholars, such as Earp and Darby, who write about nontherapeutic circumcision have questioned the practice. Medical associations in English-speaking countries express varied positions. Perhaps only the American Academy of Pediatrics in the United States seems to carry a torch, or at least a candle, for nontherapeutic neonatal circumcision.41AAP Task Force on Circumcision, Circumcision Policy Statement, 130 Pediatrics 585 (2012), available at http://pediatrics.aappublications.org/content/130/3/585 (supporting nontherapeutic circumcision but stopping short of saying that it should be routine), discussed in Munzer, Circumcision Controversy, supra note 1, at 563-64. Similar medical associations in, for example, Canada and the United Kingdom reveal less general support for nontherapeutic neonatal circumcision. See, e.g., British Medical Association, The Law and Ethics of Male Circumcision: Guidance for Doctors, 30 J. Med. Ethics 259 (2004) (evidencing legal and ethical caution in allowing nontherapeutic circumcision); Canadian Paediatric Society, Position Statement: Newborn Male Circumcision, 20 Paediatric Child Health 311, 311 (2015) (stating that “there may be a benefit for some boys in in high-risk populations” but not enough to “recommend the routine circumcision of every newborn male”). In the U.S., where nontherapeutic circumcision was nearly universal among white male infants in the 1940s and 1950s, more parents are deciding to forego the procedure for their infant males. As Adrian mentions, circumcision rates in Canada have dropped markedly – from 70 percent in the 1970s to approximately 30 to 40 percent today.42Adrian, Response, supra note 4, at 4. Some Jewish parents consider an alternative ritual for their new sons.43See, e.g., Ronald Goldman, Questioning Circumcision: A Jewish Perspective (1998); Lisa Braver Moss & Rebecca Wald, Celebrating Brit Shalom (2015). There may, then, be a budding movement that would resolve the tension by eliminating both FGC and nontherapeutic circumcision. Perhaps only among a significant subset of Muslims can one find enthusiasm for both ritual circumcision and FGC, which would be a different way of resolving the tension.

I turn finally to DeLaet’s analysis of data collected by the World Health Organization (“WHO”). She writes that

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.44DeLaet, Commentary , supra note 22, at 8-9.

Highly invasive practices are still common, but how frequently they occur is a matter for fact-intensive inquiry. For the following reasons, I am unsure whether WHO data are contrary to my hypothesis. First, the WHO Fact Sheet has changed since 2014 and it is not clear which version DeLaet is using.45DeLaet, id. at 8, refers to three types of FGC/FGM but four types are listed in the February 2014 version cited in Munzer, Circumcision Controversy, supra note 1, at 559-60 & n.294. Two years later, the most recent version appeared: WHO Media Centre, Female Genital Mutilation (Fact Sheet no. 1, updated Feb. 2016), http:///www.who.int/mediacentre/factsheets/fs241/en/ [hereinafter WHO Fact Sheet 2016]. It identifies, and opposes, four types of FGM:

Type 1: Often referred to as clitoridectomy, this is the partial or total removal of the clitoris (a small, sensitive and erectile part of the female genitals), and in very rare cases, only the prepuce (the fold of skin surrounding the clitoris).

Type 2: Often referred to as excision, this is the partial or total removal of the clitoris and the labia minora (the inner folds of the vulva), with or without excision of the labia majora (the outer folds of skin of the vulva).

Type 3: Often referred to as infibulation, this is the narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the labia minora, or labia majora, sometimes through stitching, with or without removal of the clitoris (clitoridectomy).

Type 4: This includes all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.

WHO Fact Sheet 2016, supra (boldface type in original). Thus, when DeLaet writes that “[t]he forms of FGC that are most comparable to male circumcision (Type 1) are the most common form of FGC globally,”46DeLaet, Reply, supra note 22, at 8. She also refers, id. at 7, to FGC/FGM Types 1a and 1b, which the WHO Fact Sheets of 2014 and 2016 do not. if she is referring to either the 2014 or the 2016 WHO Fact Sheet, then clitoridectomy would be closest to a partial or total penectomy, not to male circumcision. It is solely a “very rare” variant of Type 1, in which only the clitoral prepuce (clitoral hood) is removed, that approximates male circumcision. Second, the 2008 WHO document cited by DeLaet47Id. at 8 n.15 (citing World Health Organization, Eliminating Female Genital Mutilation: An Interagency Statement (2008)). This WHO publication uses a classification at 4, 23-24, that is not the same as DeLaet’s. It is closer to the WHO Fact Sheets of 2014 and 2016 but not identical with them. has been superseded by other WHO publications.48See, e.g., WHO Fact Sheet 2016, supra note 43. Third, DeLaet says that Type 2 is predominant only in Burkina Faso and Type 3 only in Eritrea and the Sudan.49DeLaet, Reply, supra note 22, at 9. More recent information seems to conflict in part with DeLaet’s account. For instance, a 2013 UNICEF document reports that “[i]n Somalia, Eritrea, Niger, Djibouti and Senegal, [more than] one in five girls have undergone the most radical form of the practice known as infibulation [Type 3], which involves the cutting and sewing of the genitalia.”50UNICEF, Female Genital Mutilation/Cutting: A Statistical Overview and Exploration of the Dynamics of Change 114 (UNICEF, July 2013) [hereinafter UNICEF Statistical Overview], available at https://www.unicef.org/media/files/UNICEF_FGM_report_July_2013_Hi_res.pdf (last visited Feb. 5, 2017). This document also says, “A trend towards less severe cutting is discernible in some countries, including Djibouti . . . .” Id. See also UNICEF: Data: Monitoring the Situation of Children and Women (rev. Aug. 17, 2016), available at https://data.unicef.org/topic/child-protection/female-genital-mutilation-cutting/ (last visited Jan. 30, 2017) (providing more recent data). Data on FGM/C do not always respect national borders but are often linked to ethnic groups that may cross more than one national border. UNICEF Statistical Overview, supra, at 116. Also, an article published in 2016 indicates that FGC is much more common in Indonesia that was previously thought.51Pam Belluck & Joe Cochrane, Unicef Report Finds Female Genital Cutting to be Common in Indonesia, N.Y. Times (Feb. 4, 2016), http://www.nytimes.com/2016/02/05/health/indonesia-female-genital-cutting-circumcision-unicef.html. UNICEF seeks to catalog type of FGM/C per country, but the information on Indonesia is anecdotal and not catalogued by type. Thus, it is impossible to say whether Indonesia contributes to a trend in favor of less severe forms. See Email message from Nicole Petrowski, consultant in the Data and Analytics section of UNICEF headquarters, to Jeremy Peretz (research assistant to Stephen R. Munzer) (Feb. 25, 2016, 6:41 p.m. Pacific time) (on file with the author). It appears that some 60 million girls and women have been cut in Indonesia, which with other additions increases the global total who have been cut to 200 million from 130 million and raises the number of countries where the practice is common to 30 from 29.52Id. In light of this news, it would be heartening if there is a trend to less severe types of FGC/M.

3. Earp and Darby on Subjective Experience of Harm and the Nature of the Foreskin

Earp and Darby have written a great deal on nontherapeutic circumcision and, to a lesser extent, FGC. They have written separately and together; sometimes each has written with other coauthors. Their paper is a stand-alone article rather than a mere response. Occasionally they take issue with me. But mostly they seek to illuminate some of the most vexed topics in this field. Among these topics are concepts of harm – the subjective experience of sexual and psychological as well as physical harm – and the nature of the foreskin. Earp and Darby have distinctive positions on these and related topics. In some writings they are circumcision-sceptics, and in others, circumcision-opponents.53Brian Morris, a conspicuous advocate of neonatal circumcision, is an example of someone who contrasts sharply with Earp and Darby. See, e.g., Brian Morris, In Favour of Circumcision (Univ. of New South Wales Press, 1999); Brian J. Morris et al., Circumcision Rates in the United States: Rising or Falling? What Effect Might the New Affirmative Pediatric Policy Have?, 89(5) Mayo Clinic Proc. 677 (2014). Morris’s position is not considered here because my contribution is a reply, not a free-standing article. They lament the fact that much work – popular and academic, medical and nonmedical – on circumcision has become political, biased, and polarized, which has impeded reaching a well-founded consensus on whether the benefits of circumcision outweigh its harms.54Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 3-4. For their part, they believe that nontherapeutic circumcisions frequently bring about more harm than benefit. Unlike most writers in this field, they pay attention to subjective harms and the highly individualized experiences of males circumcised without medical indication. If in the following pages I disagree with them on some points, the disagreements should not obscure how much I have learned by reading their paper and considering their evidence and arguments.

3.1 Concepts of Harm

Earp and Darby appeal to H.L.A. Hart’s term “open texture” in suggesting that “harm is an ‘open textured concept.’”55Id. at 11-12 (citing H.L.A. Hart, The Concept of Law 124-36 (3d ed. 2012) (1961)). But Hart unhelpfully runs together words, concepts, and perhaps other items to which the term “open texture” might apply. The word “vehicle,” the concept of a vehicle, and law are all items that Hart seems to think are open-textured. Words and their meanings are usually conventional whereas concepts are not. It would be useful to say that the word “vehicle” can be vague and that the concept of a vehicle can be fuzzy.56For such an approach, see Stephen R. Munzer, Property and Disagreement, in The Philosophical Foundations of Property Law 289 (James Penner & Henry E. Smith eds., Oxford Univ. Press 2013) (discussing the word “property,” the concept of property, and the nature of property). It does not make sense to say that a vehicle is vague or, unless its exterior is covered with fabric like that on a toy bear, fuzzy. There may be some items, such as clouds, that are indeterminate, because one cannot always count them or say exactly where a cloud begins and ends.

Our business here is with the concept of harm. This concept is central to thinking about nontherapeutic circumcision, but philosophers have encountered substantial difficulty in saying exactly what harm, or harms, or a harm, is. Earp and Darby usefully invoke the work of Joel Feinberg, who had a great impact on more than one generation of moral and legal philosophers. Feinberg holds that harms are setbacks to interests, and that harms are not identical with wrongs, hurts, or offenses.57Joel Feinberg, Harm to Others 31-64 (1984).
He contrasts harms with benefits, which advance interests.58Id. at 135-43. He devotes an entire chapter to assessing and comparing harms.59Id. at 187-217. Although this distillation of Feinberg’s positions might seem simple, he elaborates and defends them with great insight and subtlety. But a fundamental point stands out: harms, or at least most harms, are comparative and counterfactual. If one suffers a harm, one is worse off than one would have been otherwise.60Alastair Norcross, Harming in Context, 123 Phil. Stud. 149, 150 (2005), writes: “An act A harms a person P iff P is worse off, as a consequence of A, than she would have been if A hadn’t been performed.” The term “iff” means “if and only if.” This concept of harm is especially useful to utilitarians and other consequentialists, but deontologists can generally use it as well.

Subsequent philosophical discussion raises concerns about whether harm, or a harm or harms, are ever noncomparative, and indeed whether the concept of harm is useful in moral and legal theory. Seana Valentine Shiffrin proposes a noncomparative account:

Although harms differ from one another in various ways, all have in common that they render agents or a significant or close aspect of their lived experience like that of an endurer as opposed to that of an active agent, genuinely engaged with her circumstances, who selects, or endorses and identifies with, the main components of her life. . . . To be harmed primarily involves the imposition of conditions . . . which are strongly at odds with the conditions she would rationally will.61Seana Valentine Shiffrin, Wrongful Life, Procreative Responsibility, and the Significance of Harm, 5 Legal Theory 117, 123-24 (1999).

It is easy to see why Shiffrin seeks a noncomparative analysis of harm. She is concerned with wrongful-life situations in which “a congenitally disabled child” is “born into an unwanted or miserable life.”62Id. at 117. It is not possible to compare two states of the child: one in which the child is congenitally disabled and one in which the child does not exist, for the latter is not a state of this child at all. Her suggestion has advantages for wrongful-life cases and for reparations for slavery.63Seana Valentine Shiffrin, Reparations for U.S. Slavery and Justice over Time, in Harming Future Persons: Ethics, Genetics and the Nonidentity Problem 333 (Melinda A. Roberts & David T. Wasserman eds., 2009), extends her analysis to reparations. One cannot compare two states of a descendant of slaves: one in which the descendant has a wretched life and one in which he does not exist. But it is not a plausible general account of harm. Most harms are comparative and counterfactual. Moreover, as Ben Bradley points out, under Shiffrin’s analysis babies, many animals, and some brain-damaged human beings could not suffer harm because they lack a rational will, whereas a person could, for altruistic reasons, rationally will herself to be harmed if necessary to benefit another person.64Ben Bradley, Doing Away with Harm, 85 Phil. & Phenomenol. Res. 390, 400 (2012). Still, Bradley unwisely concludes that no account of harm can succeed, and that moral philosophers should dispense with the notion of harm.65Id. at 391, 410-11.

A wiser conclusion is that although no single analysis of harm is likely to work for all cases, a comparative analysis of one sort or another is apt to work for most cases addressed by moral and legal philosophers. In particular, it should work for nontherapeutic circumcision. Circumcision causes at least some harm, for pain is a harm. Anyone circumcised experiences the pain of recovery, or the pain of the procedure, or both. Medical complications, if they occur, would be a harm, as would adverse sexual or psychological consequences. Put this way, the issue becomes whether these various harms are more than offset by the benefits of nontherapeutic circumcisions.

3.2 Sexual and Psychological Harms

Much writing on circumcision pays attention only to physical harm caused by circumcisions that are botched or have complications. A salient feature of Earp and Darby’s article is their claim that circumcision sometimes harms men’s sexual and psychological experience.66Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 7-9, 21-34, 47-49. I use the expressions “sexual and psychological” and “psychosocial” interchangeably. They are not genital determinists, for they make no claim that circumcision without medical indication inevitably leads to sexual and psychological harm.67Id. at 7. The points they make are mostly familiar. Sexually, the foreskin is highly innervated and capable of erogenous sensation. The same is true of the frenulum and its nerves. Their removal involves the loss of these nerves. Any pleasurable sensations that depend in part on manipulating the foreskin and the frenulum in foreplay or masturbation, in gliding action during intercourse, and in docking are unavailable.68Docking is a sexual practice of men who have sex with men in which one man stretches his foreskin over the glans of another man, with both men being more or less erect in the process.

Psychologically, men who undergo circumcision as infants or young boys may become angry about or resent the fact that their parents consented to the procedure and that doctors or ritual circumcisers performed it. Their anger and resentment may spring from a belief that their sexual experiences are less pleasurable than they otherwise would have been69Maimonides, who was a physician as well as a scholar, seems to have believed that circumcision had a negative impact on female as well as male sexual pleasure:

The fact that circumcision weakens the faculty of sexual excitement and sometimes perhaps diminishes the pleasure is indubitable. For if at birth this member [the penis] has been made to bleed and has had its covering taken away from it, it must indubitably be weakened. The Sages, may their memory be blessed, have explicitly stated: It is hard for a woman with whom an uncircumcised man has had sexual intercourse to separate from him.

2 Moses Maimonides, The Guide of the Perplexed 609 (Shlomo Pines trans., 1963) (emphasis in original). and a belief that in any case the choice ought to have been left up to them. Further, some men speak of grief, shame, trauma, sadness, guilt, despair, denial, lower self-esteem, feeling inferior or humiliated or violated, and feeling abandoned or rejected by their parents and abused by doctors as a result of circumcision.70Lindsay R. Watson, Unspeakable mutilations: Circumcised Men Speak Out passim (Ashburton, New Zealand, 2014) [hereinafter Watson, Circumcised Men Speak Out]. See also Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 24-26, 31-32 (giving examples of psychosexual harm from circumcision). Also, some men may react badly to the appearance of their circumcised penises. A few may try, through tape or weights, to stretch the skin of the shaft of the penis so that the skin lengthens and looks somewhat like a natural foreskin. A very few may seek a surgical “uncircumcision.”71The surgical procedures are too complicated to be described here. For examples, see William E. Goodwin, Uncircumcision: A Technique for Plastic Reconstruction of a Prepuce after Circumcision, 144 J. Urol. 1203 (1990); M. J. Lynch & J. P. Pryor, Uncircumcision: A One-Stage Procedure, 72 Brit. J. Urol. 257 (1993). Julian Wan, Circumcision, in Hinman’s Atlas of Urologic Surgery 139, 144 (Joseph A. Smith, Jr. et al. eds., 3d ed. 2012), distills Lynch and Prior’s procedure in a short paragraph, but it requires medical training to follow it. I have not read of any surgery that produces either a new frenulum or a new mucous membrane for self-lubrication. Thus, at least some psychosexual harms seem to exist.

What distinguishes Earp and Darby’s treatment of these “subjective experiences” from the treatments of most other writers is Earp and Darby’s emphasis on how “highly individualized,” variable, and important they are.72Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 5-6. These experiences vary considerably from one boy or man to another. Their nature and intensity figure prominently in assessments of risk, harm, and benefit.73Id. at 37-43. Earp and Darby claim that “many men” perceive themselves to be harmed sexually or psychologically by nontherapeutic circumcision even if no surgical complications result.74Id. at 7. This harm, real or perceived, is frequently a function of the “positive value” these men assign to the foreskin or to intactness, or both, and the “negative value they assign to . . . the foreclosure of the ability to experience sex with surgically unmodified genitalia . . . and the loss of personal choice concerning a very ‘private’ part of the body.”75Id.

I wish explore some philosophical and empirical issues regarding Earp and Darby’s discussion of psychosexual harm. Lindsay Watson mentions a great many sexual and psychological harms resulting from circumcision. Among them are anger, resentment, unduly deferred ejaculation, embarrassment in intimate situations, grief, shame, sadness, guilt, despair, and feelings of being inferior or humiliated.76Watson, Circumcised Men Speak Out, supra note 70, passim. Philosophically, some may think that anger and resentment are in a different boat from genuine instances of psychosexual harm. Anger and resentment are what Peter Strawson calls, in a famous article, negative “reactive attitudes.”77P. F. Strawson, “Freedom and Resentment,” 48 Proc. of the Brit. Acad. 187 (1960), reprinted in P. F. Strawson, Freedom and Resentment and Other Essays 1 (1974). He recognizes gratitude and sympathy as positive reactive attitudes. These attitudes, he thinks, are natural and require no philosophical justification.78I am skeptical of Strawson’s position that these attitudes, which he thinks ground our practice of making ourselves and others accountable for actions and that this practice does not rest on any metaphysical conditions, eliminate any conflict between determinism and responsibility.

For my purposes, the question is whether anger and resentment are both harms and reactive attitudes. The answer turns on accurately characterizing these experiences. If A insults B, then B might have a blaze of anger, which A brings to a close by apologizing quickly and sincerely, and B in turn forgives A. In this case, B’s anger is a reactive attitude but not a harm, for it ceases to exist so quickly. In some other cases, however, anger smolders and embitters; there is no apology and no forgiveness. In such cases, anger is painful, and it is a harm as well as a reactive attitude. Resentment is almost always both a harm and a reactive attitude, because it nearly always endures for some while. Suppose C cheats D in a business deal, and as a result C is able to buy a large house which D sees every day on the drive to and from work. D’s resentment, though an understandable reactive attitude, is also a harm because of the pain and bitterness that D experiences daily. Obviously, it is not good for D to stew in his resentment. He needs, through counseling or at least a different route to and from work, to get past his resentment.

I will spill more ink on an empirical issue: How many men in the United States experience psychosexual harm as a result of circumcision? Earp and Darby do not tackle this or any similar question, but it is an obvious question both for those who think such harm is rare and for those who think many men experience such harm. I raise this question about the United States because it is a majority-circumcising country. Earp and Darby are interested in showing that subjective harm can occur even in the U.S. Suppose that one is assessing the hypothesis that “many men, including a substantial number of men from majority-circumcising cultures or subcultures,”79Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 7. experience harm of this sort. One should first ask what “many men” and “a substantial number of men” might mean in this context. If 65 out of every 100 men reported subjective experiences of harm, 65 would probably be considered both “many men” and “a substantial number of men.” If 65 out of every 10 million men reported such experiences, 65 would probably not be considered “many men” or “a substantial number of men.” In both cases, 65 is the numerator, and either 100 or 10 million is the denominator. The comparison suggests that the percentage of adversely affected men to the total number of men is a more important metric than the absolute number of adversely affected men. Granted, one should be interested in both aggregate harm and the amount of harm per individual. One also has to take account of Earp and Darby’s point that the nature and intensity of harm in the form of sexual or psychological unhappiness or distress vary widely across men.

Earp and Darby do not give the reader a percentage.80They do refer, id. at 33, to a YouGov survey reporting that 10 percent of circumcised Americans wish that they had not been circumcised. Peter Moore, Young Americans Less Supportive of Circumcision at Birth, YouGov (Feb. 3, 2015), https://today.yougov.com/news/2015/02/03/younger-americans-circumcision/ (mentioning a four percent margin of error). The report is based on 1000 adult interviews. Id. It does not say how the sample was drawn or what methodology was used. Why not? I suspect it is because they have neither the data nor a plausible methodology for studying the men in a sample. And perhaps they do not even have a sample. To be clear, I do not doubt for a moment that some men have been sexually or psychologically harmed in the ways they describe. I have seen evidence for that in reading the circumcision literature81E.g., Watson, Circumcised Men Speak Out, supra note 70; Gregory J. Boyle et al., Male Circumcision: Pain, Trauma and Psychosexual Sequelae, 7(3) J. Health Psych. 329 (2002).
and searching the Internet. Yet the evidence is mostly anecdotal. It supports the weak conclusion that some men experience sexual and psychological harm from having been circumcised. It does not support the strong conclusion that many men or a substantial number of men experience this sort of harm.

In the balance of this section, my aim is not to split hairs with Earp and Darby, but to explore ways to get better evidence. To begin with, serious difficulties bedevil coming up with a sample. Consider men in the United States who are now between the ages of 30 and 40 and who were circumcised in infancy without medical indication. I pick age 30 for the starting point because by this time almost all men have become sexually active and most are sufficiently mature to have reflected on their sexual experience. I select age 40 for the stopping point because by then most men would not have developed any sexual dysfunction traceable to physical disease that might confound the analysis of the sample. I assume that men in the sample know that they are circumcised and know that it was not done to treat any condition or disease. This assumption could be attacked. Some men, surprisingly, do not know whether they are circumcised or, if they do, lack knowledge of why they were circumcised. Let us call the set of the men between the ages of 30 and 40 the provisional sample.

It makes sense to exclude some men from the provisional sample before arriving at a final sample. First, one might eliminate some men who had congenital anomalies or abnormalities of their external genitalia – whether left untreated, corrected, or treated but not corrected. Examples include phimosis, paraphimosis, balanitis, meatal stenosis, hypospadias, penile torsion, and penoscrotal transposition.82Lane S. Palmer & Jeffrey S. Palmer, Management of Abnormalities of the External Genitalia in Boys, in 4 Campbell-Walsh Urology 3368 (11th ed. Alan J. Wein et al. eds., 2016), explain all of these conditions and many more. Surgical corrections for many conditions are described in Hinman’s Atlas of Urologic Surgery (Joseph A. Smith, Jr. et al. eds., 3d ed. 2012); Daniel Yachia, Text Atlas of Penile Surgery (Informa UK Ltd., 2007), available at http://kornyenko.com/files/Text_Atlas_of_Penile_Surgery.pdf. The reason for excluding such men is that their conditions at birth and any efforts to correct them could confound analysis of the sample. Second, one might eliminate men whose circumcisions were botched to a greater or lesser extent. Examples include excessive residual skin, excessive skin removal, skin bridges between the shaft and the glans, penile ablation, and partial or total amputation of the glans.83For a brief discussion, see Andrew Freedman et al., Complications of Circumcision, in Surgical Guide to Circumcision 45 (David A. Bolnick et al. eds., 2012). Mishaps like these are confounding factors in exploring the role of nontherapeutic circumcisions in sexual and psychological harm. It might be objected that excluding such men biases the sample against men who experience sexual or psychological harm because their circumcisions were botched. After all, mishaps like those listed are a reason for not performing nontherapeutic circumcisions. True. But it seems better to segregate the harms, be they physical or psychosexual, which result from surgical mishaps. Third, it makes sense to eliminate men who have psychological difficulties or mental illnesses that appear to have nothing to do with their having been circumcised in infancy. For illustration, men who are on the schizophrenia spectrum, or who have bipolar disorder, dissociative identity disorder, or paranoia personality disorder seem to have independent illnesses. I would not, however, exclude all of the sexual dysfunctions mentioned in the DSM-5, because it is possible that some of these could be causally related to circumcision.84Diagnostic and Statistical Manual of Mental Disorders 423-50 (American Psychiatric Association 5th ed., 2013) (commonly known as the DSM-5). Neither would I exclude all cases of persistent depressive disorder (dysthymia), which might be a reaction to circumcision.85Id. at 168-71. If one eliminates the men in these three classes, one is left with the final sample.

At this point one will encounter questions about populating the final sample. How many men would one need? Because one is starting with little information about how many U.S. men experience sexual and psychological problems relating to their circumcisions, a fairly large number would be helpful. Perhaps 10,000 men would be a minimum. Which demographics should be taken into account? It is reasonable to draw men from different geographical locations, different living areas (urban, small town, rural), different races and ethnicities, different socioeconomic groups, and different religions (including men with no religious affiliation) – all in proportion to their numbers in the total U.S. male population between the ages of 30 and 40 at the commencement of the study. Do the qualifications of the circumciser matter? In point of the quality of the circumcision, one would expect that, all else being equal, the best results would come from board-certified urologists who circumcise frequently and the least good results come from general practitioners who circumcise infrequently. But since men with botched circumcisions are excluded from the final sample, the credentials and competence of the circumciser have arguably already been taken into account. Would it be useful to have a parallel sample of 10,000 men who have not been circumcised? The parallel sample could illuminate whether some psychosexual harms exist in both circumcised and uncircumcised men, even if the causal mechanism differs in the two samples.

Suppose that an independent nonprofit medical foundation, which has no position pro or con on nontherapeutic circumcision, is willing to recruit men for the final sample, analyze the results, and publish a study on the results. The foundation cannot just put an advertisement in newspapers for potential participants, because nowadays many people do not read newspapers and because advertising nationwide would be expensive. Neither can the foundation construct one or more websites that search for men who have bad feelings about their nontherapeutic circumcisions, for that would bias the sample in favor of those who have experienced sexual or psychological harm.

One possibility would be to ask medical doctors – mainly general practitioners and internists – during annual physicals to offer male patients between 30 and 40 the opportunity to participate in a survey. This possibility could reflect some bias concerning access to healthcare, for in the United States many men have no health insurance and cannot afford annual physicals. Doctors would not do the survey themselves. That would be the job of trained interviewers who ask the right questions in a face-to-face meeting. Still, even if the survey takes as little as 10 or 20 minutes, it is not evident that men will readily volunteer. Perhaps one could offer a small incentive – say, $50 – for participants, but many men might not be willing to go to a separate location for so little money. If one offered a larger incentive – say, $200 – that might bias the sample in favor of men who need the money. Perhaps one could offer mental health therapy for those men who report sexual or psychological harm. However, men who have no sexual or psychological experiences of harm from their circumcisions might conclude that the survey is about the oddest and most intrusive medical study they have ever heard of.

Much remains to be done to produce a methodologically sound analysis of the percentage of men who experience sexual or psychological harm stemming from their nontherapeutic circumcisions. Still, it cannot be done here, and I am not the right person for the job. I want, though, to connect these reflections with a larger point that Earp and Darby, as I understand them, are determined to make: inadequate information on the harms of nontherapeutic circumcision is a reason for leaving the choice to male minors when they are old enough to make an autonomous choice for themselves.86I read Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 43-47, to make this point from their favorable reception of passages quoted, id. at 43, from Akim McMath, Infant Male Circumcision and the Autonomy of the Child: Two Ethical Questions, 41 J. Med. Ethics 687 (2015). They are well aware that dispute exists over the subjectivity of sexual and psychological harm, the extent of physical harm produced by botched circumcisions, and the difficulties associated with calculating whether the benefits of circumcision outweigh its costs. They are also aware of the role circumcision plays in Judaism and Islam, and the fears among some Jews and Muslims that if their male children are not circumcised while young they might never choose it when they become adults. Those who disagree with Earp and Darby might reconsider the importance of autonomy.

3.3 The Nature of the Foreskin

In this section I inquire into what, exactly, the foreskin is. This inquiry, I hope to show, sheds light on what, exactly, circumcision is. In that way it relates to Darby’s efforts to classify different types of male genital cutting (“MGC”), which is a project whose counterpart would be efforts by the WHO to classify different types of FGM/C. You might think this is a strange subject, but it is at least as interesting as John Cleese’s pretend television documentary on molluscs,872 The Complete Monty Python’s Flying Circus: All the Words 124-25 (1989) (boldface types and italics in original):
Zorba [John Cleese] Tonight molluscs. The mollusc is a soft-bodied, unsegmented vertebrate usually protected by a large shell. . . .
Mr Jalin [Terry Jones] Disgraceful! I don’t know how they’ve got the nerve to put [a documentary on molluscs] on.
Mrs Jalen [Graham Chapman] It’s so boring.
Zorba Well, it’s not much of a subject . . . be fair.
. . . .
Zorba However, what is more interesting, er . . . is the molluscs’s er . . . sex life. . . . Yes, the mollusc is a randy little fellow whose primitive brain scarcely strays from the subject of you know what. . . .
Mrs Jalin (going back to the sofa) Disgusting!
Mr. Jalin But more interesting.
so give me a chance. First, some background.

In my discussion of DeLaet on sex and gender, I referred in passing to the idea that sex is not always a matter of plain biological fact, because how we conceive of the sexual organs of human males and females sometimes depends on different models and interpretations.88See supra text accompanying note 28 and the reference to Laqueur, Making Sex in note 28 supra. Darby has written an intriguing study of the Victorian determination to curb masturbation through circumcision and to demonize the foreskin.89Robert Darby, A Surgical Temptation: The Demonization of the Foreskin and the Rise of Circumcision in Britain (University of Chicago Press 2005). For a broader history of male and female masturbation with only passing attention to the male prepuce, see Thomas W. Laqueur, Solitary Sex: A Cultural History of Masturbation (rev. ed. 2004). The stigmatizing of the foreskin arises in part because its inner layer is a mucous membrane that generates lubrication for potentially more satisfying and more frequent masturbation, which proper Victorian Britons did not see as a good thing.

Earp and Darby strike out in a new direction in their paper for this issue. They write that “the foreskin is not a stalk or a discrete organ like a finger or gall bladder, but rather a sheath of tissue wrapped around and integrated with the larger structure [the penis] of which it is a part.”90Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 18 (footnote omitted). Elsewhere they say that the foreskin is “a touch-sensitive, motile sleeve of tissue that comprises dozens of square centimeters in the average adult organ.”91Id. at 26.

For anatomical reasons that will become clear, the foreskin does not include the frenulum, which is a highly innervated fold of mucous membrane that goes from the undersurface of the glans to the deep undersurface of the penis. Neither does the foreskin include the thin penile skin that runs from the coronal sulcus, or thereabouts, down to the base of the penis. With these exclusions, the foreskin is, roughly, the double-sided structure (inner mucous membrane and outer skin) that surrounds the rest of the penis and goes from the coronal sulcus, or thereabouts, to the distal end of the penis. The word “thereabouts” allows for statistically normal variations in penile anatomy. Later I will make this description of the foreskin less rough. Even then, it is only a proposal or recommendation on how one could describe the foreskin. This description might aid Earp and Darby’s 7-point classification of male genital cutting.92Id. at 19. See infra text accompanying notes 107-115.

Circumcision, Earp and Darby say, is designed to remove the foreskin “in part or in full.”93Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 18. How might one answer the question of what, exactly, the entire foreskin is, which can be partly or fully removed? One way is to approach this question through embryology. Frank Netter’s fine anatomical atlas breaks down male and female homologues of the external genitalia by illustrating an early undifferentiated genital tubercle, developmentally followed at 10 weeks gestation by highly similar genital structures, and finally fully developed external genitals which differ in males and females.94Frank H. Netter, Atlas of Human Anatomy Plate 393 (Ciba-Geigy Corp., Summit, NJ, 1990). Homologues of internal genitalia are visible at an early undifferentiated stage that shows the primordial forms of the prostate and Cowper’s gland for males and of Skene’s gland and Bartholin’s gland for females.95Id. at Plate 394. One can recognize the adult forms of these and more obvious structures of males’ and females’ external genitalia and perineum.96Id. at Plate 354-Plate 366 (showing these structures at various levels of dissection).

Cold and Taylor’s nonvisual but more technical embryological discussion, which elaborates on the fine-structure of the male and female prepuces, supplements Netter’s atlas.97C. J. Cold & J. R. Taylor, The Prepuce, 83 Brit. J. Urol. 34, 35 (Supp. 1, 1999). I am not saying that their approach is entirely embryological. Cold and Taylor say that the male prepuce is “a pentilaminar [five-layer] structure composed of a[n] [inner] squamous mucosal epithelium, lamina propria (corion), dartos muscle, dermis, and outer glabrous [hairless] skin.”98Id. at 35. They explain some of the details in id. at 38-39. For still more detail, see John M. Park, Embryology of the Genitourinary Tract, in 4 Campbell-Walsh Urology 2823 (Alan J. Wein et al. eds., 11th ed. 2016). Embryologically, this structure is “formed by a combination of preputial folding and the ingrowth of a cellular lamella.”99Cold & Taylor, supra note 94, at 35. It is the mucosal epithelium, along with secretions from the prostate and other small glands, that provides lubrication upon sexual arousal.100Id. at 38-40.

How does my double-sided structure relate to their five-layer structure? To answer this question satisfactorily, one must remember that “[t]he glans penis and the inner prepuce share a common, fused mucosal epithelium at birth.”101Id. at 35. This fusion does not end until either a normal separation occurs with age,102Separation comes in a range from shortly after birth until age 17, with separation typically arriving between the ages of two and 14. Id. at 35-36. or the mucosal epithelium is torn apart with fingers or forced apart with an instrument, as in neonatal circumcision. Once the separation has occurred, the inner layer of the foreskin includes the mucosal epithelium, lamina propria, and dartos muscle – which Cold and Taylor refer to collectively as the “inner plate of the prepuce.”103Id. at 38 (bold type omitted). The outer plate includes the dermis and glabrous skin. Thus, the two accounts are consistent, but theirs is more detailed than mine.

An embryological approach is not a neutral matter of plain biological fact. It rests on a premise that the development of the foreskin and the clitoral hood tells us much about how these homologous body parts came to have the location, functions, and various nerves, blood vessels, muscles, tissue types, and lubricating secretions they do. Placing one’s trust in embryology, even if it does not amount to science, medicalizes the foreskin in the reader’s imagination.

A quite different approach is to see, not how the foreskin came to be, but the varied ways of removingit, in whole or in part. Earp and Darby take this different approach by proposing a “7-point scale . . . based principally on the quantity of foreskin tissue removed.”104Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 19. This scale, they say, “ranges from mild injury without loss of tissue to partial or complete denudation of the penis.”105Id. (footnote omitted). Their inspiration comes from “the classifications of female genital cutting devised by the World Health Organization.”106Id. The scale used by Earp and Darby has two sources: a 2007 paper that Darby wrote with Steven Svoboda,107Id. at 19 n.41. Robert Darby & J. Steven Svoboda, A Rose by Any Other Name? Rethinking the Similarities and Differences between Male and Female Genital Cutting, 21(3) Med. Anthro. Q. 301 (2007) [hereinafter Darby & Svoboda 2007]. and a 2008 paper by Darby and Svoboda that has virtually the same title.108J. Steven Svoboda & Robert Darby, A Rose by Any Other Name? Symmetry and Asymmetry in Male and Female Genital Cutting, in Fearful Symmetries: Essays and Testimonies Around Excision and Circumcision 259 (Chantal Zabus ed., Rodopi, Amsterdam and New York, 2008) [hereinafter Svoboda & Darby 2008]. Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 19 n.55, refer to these two articles. The 2007 paper has only a 5-point scale.109Darby & Svoboda 2007, supra note 104, at 308. They suggest that one could “break the WHO definition down more precisely into at least seven procedures.” Id. The 2008 paper initially repeats something like the 5-point scale but then suggests a 7-point scale by separating Type 4 into three subtypes.110Svoboda & Darby 2008, supra note 105, at 262-64. Oddly, the 5-point scale, id. at 262-63, does not have the same wording as Darby & Svoboda 2007, supra note 104, at 308. I will honor Darby’s apparent intention to have a 7-point scale by discussing only the 2008 paper. It is, however, worth noting that by appealing to and imitating the WHO FGM/C scale, Earp and Darby have a more political or ideological approach than one sees in the embryological approach discussed above. That is because the WHO seeks to eliminate FGM,111WHO Fact Sheet 2016, supra note 33, states: “FGM is recognized internationally as a violation of the human rights of girls and women. . . . FGM has no health benefits, and it harms girls and women in many ways. . . . Since 1997, great efforts have been made to counteract FGM.” and Earp and Darby seek to eliminate nontherapeutic circumcision. So, despite some medical terminology, their classification is not a neutral matter of plain biological fact either.

Here is the 7-point scale of male genital cutting from Svoboda and Darby’s 2008 paper:112Svoboda & Darby 2008, supra note 105, at 262-63. Footnotes within the block quotation are mine. Their purpose is to clarify Earp and Darby’s vocabulary and views and to place them in context.

Type 1: A nick to or slitting of the foreskin; or premature or forcible separation of the prepuce from the glans, without amputation of tissue.113At birth, the foreskin almost always adheres tightly to the glans. To accomplish neonatal circumcision of Types 3, 4, 4A, 4B or 4C, the circumciser needs to bluntly dissect the foreskin from the glans by using a probe or similar instrument, or using fingers to tear them apart.

Type 2: Amputation of the portion of the foreskin extending beyond the glans.114Type 2 is identical with, or at least similar to, what Jewish tradition knows as circumcision milah. Cf. the covenant of circumcision (bris milah) between God and Abraham in Genesis 17:9-14.

Type 3: Amputation of the foreskin at a point partway along the glans; some foreskin and all of the frenulum left; some sliding functionality retained.

Type 4: Amputation of the foreskin at or below the corona of the glans.115The corona is the crown of the glans. The groove immediately below it is the coronal sulcus.

Type 4A: Amputation of the foreskin at the corona of the glans, leaving glans fully exposed, but retaining frenulum; little or no sliding functionality; frenular nerves retained.

Type 4B: Amputation of the foreskin at the corona of the glans, also excising frenulum; little or no sliding functionality; no frenular nerves left.116Type 4B is identical with, or at least similar to, what the Jewish tradition calls circumcision milah and peri’ah. It appears to have been introduced in the second century C.E. to prevent epispasm by milah-circumcised men. Epispasm is pulling remaining skin from the penile shaft past the glans and then holding it in place with a string or circular pin. In Greco-Roman times, some Jewish men visited gymnasia and participated in athletic contests in which men were naked. 1 Maccabees 1:15-16. The purpose of epispasm was to conceal the circumcised state of their penises. The rabbis pretty much put a stop to it by insisting on a unified procedure of milah and peri’ah. For an excellent brief treatment of Jewish doctrine and practices, see Circumcision, in 4 Encyclopedia Judaica 730 (Macmillan Reference, 2d ed., 2007) [hereinafter Jewish Circumcision].

Type 4C: Amputation of the foreskin beyond the corona of the glans, at any point along the penis shaft; all foreskin and variable quantities of shaft skin excised; all frenular nerves lost; zero sliding functionality; high risk of insufficient slack tissue for accommodating tumescence.117If there is not enough slack tissue to accommodate an erection, the result would, I think, commonly be described as a complication or a botched circumcision. It would be odd to intend to produce such a result.

Type 5: Other forms of penis mutilation, including meatotomy, subincision, infibulation, piercing and implants.118Most forms of Type 5 are anthropological curiosities. A meatotomy is an incision to enlarge the opening of the urethra at the tip of the penis (urethral meatus). A subincision is slitting open the underside of the penis from base to tip to create an appearance similar to that of the vulva. Infibulation, in the male context, is the closing up of a subincision. As to implants, Svoboda and Darby have in mind the insertion of foreign objects under the penile skin rather than medical implants. Compare Modern Primitives: An Investigation of Contemporary Adornment and Ritual 156-57 (V. Vale & Andrea Juno eds., San Francisco, Re/Search Publications, 1989) (describing the implantation of small pearls under the penile skin by Yakuza in prison), with J. Francois Eid, Surgery for Erectile Dysfunction, in 1 Campbell-Walsh Urology 709 (Joseph A. Smith, Jr. et al. eds., 11th ed. 2016) (describing the implantation of various types of prostheses to treat erectile dysfunction).

This 7-point classification is more careful and encompassing than any classification of MGC that I have seen. But if circumcision is the removal of the foreskin, it does not explain which structures, exactly, constitute the foreskin. One might attempt an explanation by answering two questions. First, which part, if any, of the hairless skin that covers the distal end of the penis is part of the foreskin? A sensible answer to this question is that only that part of the outer skin which has an underlying inner mucosal layer belongs to the foreskin. In effect, only skin that covers down to the coronal sulcus, or thereabouts, counts as part of the foreskin; in this respect it differs from the thin layer of skin that covers most of the penile shaft. Second, is the frenulum part of the foreskin? Anatomically, it would seem not. The word “frenulum” is just the diminutive of the Latin word “frenum,” which by definition is a “narrow reflection or fold of mucous membrane passing from a more fixed to a movable part, serving to check undue movement of the [more fixed] part.”119Stedman’s Medical Dictionary 620 (25th ed. illustrated, 1990), s.v. “frenum,” sense 1; s.v. “frenulum.” Think of two frenula in the human mouth. The lingual frenulum is attached to and limits the movement of the tongue but it does not seem to be part of the tongue. The frenulum of the lower lip is attached to and limits movement of the lower lip but does not seem to be part of that lip. By analogy, then, the penile frenulum is attached to and limits the movement of the foreskin but it would not seem to be part of it.

The answers to these questions might aid Svoboda and Darby’s project to devise a classification of MGC. It is worth noting that not all types of MGC would count as circumcision, and Earp, Darby, and Svoboda say nothing to the contrary. Type 1 does not remove any foreskin tissue. However, a “nick” is akin to the Jewish practice of hatafat dam bris (“covenant of blood”), in which a mohel sticks a needle or other sharp instrument into the glans to produce a few drops of blood. The practice is done for converts who have already been circumcised and for infants who lack a foreskin.120Jewish Circumcision, supra note 113, at 732. Thus, hatafat dam bris is not really circumcision but it functions ritually as a circumcision substitute. Type 1 also includes “premature or forcible separation of the prepuce from the glans.” Cold and Taylor recommend against this separation because it risks “excoriation and injury” to the glans as well as “scarring” and “bleeding.”121Cold & Taylor, supra note 94, at 35-36.

Moreover, MGC of Types 4B and 4C goes beyond circumcision. Both involve removing the frenulum and all frenular nerves. If one accepts my suggestion that the frenulum is not part of the foreskin, then excising the frenulum is not part of circumcision. However, given that most secular and religious circumcisions in the United States belong to Type 4B or 4C, as a practical matter there may be a social understanding that circumcision includes removal of the frenulum. This social understanding, if it exists, is somewhat porous, for many Americans do not know enough anatomy to grasp what the frenulum is or its highly erogenous nature unless they have one or have seen one.

I hope it will not be churlish to remark that the original authors of the 7-point classification – Darby and Svoboda in their 2007 and 2008 papers – make only modest efforts to be even-handed. They do, of course, write male genital “cutting” and MGC rather than “mutilation” and MGM. But both papers mount a sustained attack on nontherapeutic circumcision. Also, Type 5 begins by saying, “[o]ther forms of penis mutilation,” which suggests that all the rest of the types they identify are forms of mutilation.

4. Conclusion

As Adrian points out, the U.N. Convention on the Rights of the Child is an important document, even if Article 24(3) is ambiguous or vague. However, she does not clinch her case that anti-minority sentiment has pride of place in analyzing the Cologne appellate court’s opinion and decision.

Although DeLaet overemphasizes the role of gender in the German case that launched the controversy, sex and gender are both important in studies of ongoing German family law and more generally in the divergent treatment of nontherapeutic circumcision and FGC. It is unclear whether her emphasis on gender can offer much guidance on resolving the tension between toleration of circumcision and condemnation of FGC. Much as I am grateful for DeLaet’s commentary, I am not persuaded that the evidence shows that gender is a fourth independent variable in explaining the Cologne decision and subsequent controversy, for gender is effectively absorbed into German cultural norms. I hold to my identification of secularization, cultural norms, and anti-minority sentiment as unranked factors in explaining the Cologne decision and the ensuing controversy.

Earp and Darby throw a great deal of light on the neglected phenomenon of psychosexual harm associated with circumcision. Their discussion of the concept of harm, though, could usefully have been deeper. They suggest convincingly that some men experience sexual and psychological harms as a result of circumcision. But it is not possible to say, without the careful empirical studies not present in their article or in the existing literature, that many men or a substantial number of men experience these harms. Taking a cue from the World Health Organization’s differentiating between various types of FGC, Darby, Earp, and Svoboda propose an intriguing classification of male genital cutting (MGC). A careful investigation into the nature of the foreskin might aid their proposal.

As I continue work in this area, I will appreciate Adrian for her emphasis on the domestic relevance of international agreements, DeLaet for the importance of gender in full-bore examinations of FGC and MGC, and Earp and Darby for identifying psychosexual harms from circumcision and the 7-point classification of MGC.

References   [ + ]

01. Stephen R. Munzer, Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy, 37 U. Pa. J. Int’l L. 503 (2015) [hereinafter Munzer, Circumcision Controversy]. The case that ignited the controversy is Judgment of May 7, 2012, Landesgericht Köln [LGK] [Cologne Regional Court], 151 Ns 169/11 (Ger.) (holding that a circumcision without medical indication of a four-year-old Muslim boy is a criminal assault under § 223 and §224 StGB despite his parents’ consent, though in the circumstances the physician charged with the offense is to be acquitted owing to an unavoidable-mistake-of-law defense under § 17 StGB (Verbotsirrtum)), reversing Judgment of Sept. 21, 2011, Amtsgericht Köln [AmK] [Cologne Trial Court], 528 Ds 30/11 (Ger.) (acquitting the physician on other grounds). The Strafgetzbuch (“StGB”) is the German Criminal Code. For English translations of the district (trial) and regional (appellate) court opinions, see Durham University, District Court of Cologne – Judgment of 7 May 2012 on male circumcision for religious reasons, Islam, Law, and Modernity (Jul. 10, 2012) https://www.dur.ac.uk/ilm/newsarchive/?itemno=14984.
02. See, most recently, Melanie Adrian, Religious Freedom at Risk: The EU, French Schools, and Why the Veil was Banned (Springer, 2016).
03. This reply uses the phrases “circumcision without medical indication” and “nontherapeutic circumcision” interchangeably. Virtually all ritual circumcisions are nontherapeutic circumcisions, but not vice versa. (I want to allow for the possibility that a ritual circumciser might see a medical problem that circumcision would solve and intend both to perform the ritual and to solve the medical problem). Secular circumcisions in the United States, which are generally done for hygienic, prophylactic, or aesthetic reasons, are nontherapeutic but not ritual circumcisions. A common medical reason for circumcision is paraphimosis (constriction of the “head” (glans) of the penis by an unduly tight foreskin).
04. Melanie Adrian, Response to Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy, 38 U. Pa. J. Int’l L. Online 1, 2 (2017) (single-spaced draft forwarded to me on Jan. 16, 2017) [hereinafter Adrian, Response].
05. Id. at 2.
06. Id. at 2-3 (citing United Nations Convention on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: South Africa, ¶ 33, U.N. Doc. CRC/C/15/Add.122 (Feb. 22, 2000)). See also Report of the Committee on the Rights of the Child, May 8, 2000, ¶ 1464, U.N. Doc. A/55/41; GAOR, 55th Sess., Supp. No. 41 (2000),
07. Adrian, Response, supra note 4, at 3 & n.8 (citing United Nations Special Rapporteur for Religious Freedom and Belief, Interim Report, ¶ 73, U.N. Doc. A/70/286 (Aug. 5, 2015)).
08. Convention on the Rights of the Child, art. 24(3), opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990) [hereinafter “CRC”].
09. John Tobin, The Right to Health in International Law 307 (2012). See also John Tobin, The International Obligation to Abolish Traditional Practices Harmful to Children’s Health: What Does It Mean and Require of States?, 9 Hum. Rts. L. Rev. 373, 378 (2009) [hereinafter Tobin, Children’s Health].
10. Brian D. Earp & Robert Darby, Circumcision, Sexual Experience, and Harm, 38 U. Pa. J. Int’l L. 1, 50-53 (2017) (double-spaced revision forwarded to me on Jan. 16, 2017) [hereinafter Earp & Darby, Circumcision, Sexual Experience, and Harm].
11. Id. at 51-52.
12. Id. at 52-53.
13. Adrian, Response, supra note 4, at 3, mentions an interim report (cited in note 7 supra), by Special Rapporteur Heiner Bielefeldt. He stated that “no state has outlawed the practice [circumcision] as such, which would be a far-reaching intervention into parental rights” and elsewhere commented that the Cologne appellate decision was “nonsense.” He may be correct, but the interim report and his comment do not amount to much of an argument.
14. Adrian, Response, supra note 4, at 1.
15. Id. (emphasis added). Later she refers to “a particularly concerning degree of ignorance, – or perhaps even arrogance, – from the German judiciary.” Id. at 4.
16. Adrian, Response, supra note 4, at 5 (emphasis added).
17. Munzer, Circumcision Controversy, supra note 1, went to press in late 2015. Since then, most Germans seem much more interested in the wave of Muslim immigration than in Islamic circumcision. Among far-right political parties, however, the Alternative für Deutschland (“AfD”) was represented in more than half of the German State parliaments by 2016. Alternative for Germany, https://en.wikipedia.org/wiki/Alternative_for_Germany (last visited Jan. 30, 2017).
18. Adrian picks these assumptions and arguments apart nicely. Adrian, supra note 4, at 4-5.
19. Judgment of May 7, 2012, LGK, supra note 1, part III of the opinion (English translation) (internal citations omitted).
20. For an excellent survey, see Michael Brownstein, Implicit Bias, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2015), available at https://plato.stanford.edu/entries/implicit-bias/ (last visited Jan. 29, 2017).
21. Munzer, Circumcision Controversy, supra note 1, at 519-20, discusses these matters briefly.
22. Id. at 543 n.184 (citing Debra L. DeLaet, Genital Autonomy, Children’s Rights, and Competing Rights Claims in International Human Rights Law, 20 Int’l J. Child. Rts. 554 (2012)).
23. Debra L. DeLaet, Reply to Stephen R. Munzer’s “Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy,” 38 U. Pa. J. Int’l L. Online yy (2017) (double-spaced typescript forwarded to me on Jan. 16, 2017) [hereinafter DeLaet, Reply].
24. Id. at 5.
25. Id. at 10.
26. Id.
27. Id. at 6.
28. See, e.g., Thomas Laqueur, Making Sex: Body and Gender from the Greeks to Freud (1990) (arguing that a one-sex model gave way to a two-sex model in the eighteenth century) [hereinafter Laqueur, Making Sex].
29. The 2012 statute added § 1631d to the German civil code (Bürgerliches Gesetzbuch, or BGB) (Ger.). It gives parents the right, with some limitations, to consent to the nontherapeutic circumcision of their male child provided that it is done in accordance with medical standards. It also permits skilled ritual circumcisers to do the procedure in the first six months of life. The 2013 statute added § 226a StGB to the criminal code which makes FGC/FGM a separate offense with a maximum sentence of 15 years (Ger.). Munzer, Circumcision Controversy, supra note 1, at 545-46, translates the 2012 statute into English. I have not seen an English translation of the 2013 statute.

Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 10 n.22, point to my bad habit, in Munzer, Circumcision Controversy, supra note 1, passim, of using FGM instead of FGC. FGM is not value-neutral. It is sometimes appropriate in reporting the views of the World Health Organization, which often uses FGM or FGM/C, and in describing § 226a StGB, which uses the German word Verstümmelung (“mutilation”). DeLaet, Reply, supra note 22, at 6 n.1, is right to use the neutral term FGC except when referring to German law or WHO publications.

30. DeLaet, Reply, supra note 22, at 7 n.13.
31. Id.
32. Munzer, Circumcision Controversy, supra note 1, at 549-51, 554-55, 577.
33. Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 50.
34. Id.
35. Id.
36. In the relevant time period only a few commentators seized on the gender differences. See, e.g., Tonio Walter, Das unantastbare Geschlecht [The Sacrosanct Sex], Zeit Online [July 4, 2013], available at http://pdf.zeit.de/2013/28/genitalverstuemmelung-gesetz-frauen.pdf (arguing that legalizing male circumcision while punishing the removal of parts of the clitoral hood constitutes sex discrimination because both procedures are comparable in degree), discussed in Munzer, Circumcision Controversy, supra note 1, at 560-61. By contrast, the Cologne appellate court made little mention of gender in its opinion. Almost all of the academic and public debate centered, in a noncomparative way, on whether nontherapeutic male circumcision was an unreasonable practice or something to be allowed in a multicultural society. See Munzer, Circumcision Controversy, supra note 1, at 520-44 (reporting on the debate in Germany).
37. DeLaet, Commentary, supra note 22, at 6 (citation omitted).
38. I am not saying that it would have been justified for German politicians and other Germans to have remained silent on this decision.
39. Id. at 9.
40. For instance, the Royal Dutch Medical Association (“KNMG”) concluded, among other things, that “[t]here is no convincing evidence that circumcision is useful or necessary in terms of prevention or hygiene” and “[n]on-therapeutic circumcision of male minors conflicts with the child’s right to autonomy and physical integrity.” KNMG, Non-Therapeutic Circumcision of Male Minors 4 (May 27, 2010), available at http://www.circumstitions.com/Docs/KNMG-policy.pdf.
41. AAP Task Force on Circumcision, Circumcision Policy Statement, 130 Pediatrics 585 (2012), available at http://pediatrics.aappublications.org/content/130/3/585 (supporting nontherapeutic circumcision but stopping short of saying that it should be routine), discussed in Munzer, Circumcision Controversy, supra note 1, at 563-64. Similar medical associations in, for example, Canada and the United Kingdom reveal less general support for nontherapeutic neonatal circumcision. See, e.g., British Medical Association, The Law and Ethics of Male Circumcision: Guidance for Doctors, 30 J. Med. Ethics 259 (2004) (evidencing legal and ethical caution in allowing nontherapeutic circumcision); Canadian Paediatric Society, Position Statement: Newborn Male Circumcision, 20 Paediatric Child Health 311, 311 (2015) (stating that “there may be a benefit for some boys in in high-risk populations” but not enough to “recommend the routine circumcision of every newborn male”).
42. Adrian, Response, supra note 4, at 4.
43. See, e.g., Ronald Goldman, Questioning Circumcision: A Jewish Perspective (1998); Lisa Braver Moss & Rebecca Wald, Celebrating Brit Shalom (2015).
44. DeLaet, Commentary , supra note 22, at 8-9.
45. DeLaet, id. at 8, refers to three types of FGC/FGM but four types are listed in the February 2014 version cited in Munzer, Circumcision Controversy, supra note 1, at 559-60 & n.294. Two years later, the most recent version appeared: WHO Media Centre, Female Genital Mutilation (Fact Sheet no. 1, updated Feb. 2016), http:///www.who.int/mediacentre/factsheets/fs241/en/ [hereinafter WHO Fact Sheet 2016]. It identifies, and opposes, four types of FGM:

Type 1: Often referred to as clitoridectomy, this is the partial or total removal of the clitoris (a small, sensitive and erectile part of the female genitals), and in very rare cases, only the prepuce (the fold of skin surrounding the clitoris).

Type 2: Often referred to as excision, this is the partial or total removal of the clitoris and the labia minora (the inner folds of the vulva), with or without excision of the labia majora (the outer folds of skin of the vulva).

Type 3: Often referred to as infibulation, this is the narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the labia minora, or labia majora, sometimes through stitching, with or without removal of the clitoris (clitoridectomy).

Type 4: This includes all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.

WHO Fact Sheet 2016, supra (boldface type in original).

46. DeLaet, Reply, supra note 22, at 8. She also refers, id. at 7, to FGC/FGM Types 1a and 1b, which the WHO Fact Sheets of 2014 and 2016 do not.
47. Id. at 8 n.15 (citing World Health Organization, Eliminating Female Genital Mutilation: An Interagency Statement (2008)). This WHO publication uses a classification at 4, 23-24, that is not the same as DeLaet’s. It is closer to the WHO Fact Sheets of 2014 and 2016 but not identical with them.
48. See, e.g., WHO Fact Sheet 2016, supra note 43.
49. DeLaet, Reply, supra note 22, at 9.
50. UNICEF, Female Genital Mutilation/Cutting: A Statistical Overview and Exploration of the Dynamics of Change 114 (UNICEF, July 2013) [hereinafter UNICEF Statistical Overview], available at https://www.unicef.org/media/files/UNICEF_FGM_report_July_2013_Hi_res.pdf (last visited Feb. 5, 2017). This document also says, “A trend towards less severe cutting is discernible in some countries, including Djibouti . . . .” Id. See also UNICEF: Data: Monitoring the Situation of Children and Women (rev. Aug. 17, 2016), available at https://data.unicef.org/topic/child-protection/female-genital-mutilation-cutting/ (last visited Jan. 30, 2017) (providing more recent data). Data on FGM/C do not always respect national borders but are often linked to ethnic groups that may cross more than one national border. UNICEF Statistical Overview, supra, at 116.
51. Pam Belluck & Joe Cochrane, Unicef Report Finds Female Genital Cutting to be Common in Indonesia, N.Y. Times (Feb. 4, 2016), http://www.nytimes.com/2016/02/05/health/indonesia-female-genital-cutting-circumcision-unicef.html. UNICEF seeks to catalog type of FGM/C per country, but the information on Indonesia is anecdotal and not catalogued by type. Thus, it is impossible to say whether Indonesia contributes to a trend in favor of less severe forms. See Email message from Nicole Petrowski, consultant in the Data and Analytics section of UNICEF headquarters, to Jeremy Peretz (research assistant to Stephen R. Munzer) (Feb. 25, 2016, 6:41 p.m. Pacific time) (on file with the author).
52. Id.
53. Brian Morris, a conspicuous advocate of neonatal circumcision, is an example of someone who contrasts sharply with Earp and Darby. See, e.g., Brian Morris, In Favour of Circumcision (Univ. of New South Wales Press, 1999); Brian J. Morris et al., Circumcision Rates in the United States: Rising or Falling? What Effect Might the New Affirmative Pediatric Policy Have?, 89(5) Mayo Clinic Proc. 677 (2014). Morris’s position is not considered here because my contribution is a reply, not a free-standing article.
54. Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 3-4.
55. Id. at 11-12 (citing H.L.A. Hart, The Concept of Law 124-36 (3d ed. 2012) (1961)).
56. For such an approach, see Stephen R. Munzer, Property and Disagreement, in The Philosophical Foundations of Property Law 289 (James Penner & Henry E. Smith eds., Oxford Univ. Press 2013) (discussing the word “property,” the concept of property, and the nature of property).
57. Joel Feinberg, Harm to Others 31-64 (1984).
58. Id. at 135-43.
59. Id. at 187-217.
60. Alastair Norcross, Harming in Context, 123 Phil. Stud. 149, 150 (2005), writes: “An act A harms a person P iff P is worse off, as a consequence of A, than she would have been if A hadn’t been performed.” The term “iff” means “if and only if.”
61. Seana Valentine Shiffrin, Wrongful Life, Procreative Responsibility, and the Significance of Harm, 5 Legal Theory 117, 123-24 (1999).
62. Id. at 117.
63. Seana Valentine Shiffrin, Reparations for U.S. Slavery and Justice over Time, in Harming Future Persons: Ethics, Genetics and the Nonidentity Problem 333 (Melinda A. Roberts & David T. Wasserman eds., 2009), extends her analysis to reparations. One cannot compare two states of a descendant of slaves: one in which the descendant has a wretched life and one in which he does not exist.
64. Ben Bradley, Doing Away with Harm, 85 Phil. & Phenomenol. Res. 390, 400 (2012).
65. Id. at 391, 410-11.
66. Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 7-9, 21-34, 47-49. I use the expressions “sexual and psychological” and “psychosocial” interchangeably.
67. Id. at 7.
68. Docking is a sexual practice of men who have sex with men in which one man stretches his foreskin over the glans of another man, with both men being more or less erect in the process.
69. Maimonides, who was a physician as well as a scholar, seems to have believed that circumcision had a negative impact on female as well as male sexual pleasure:

The fact that circumcision weakens the faculty of sexual excitement and sometimes perhaps diminishes the pleasure is indubitable. For if at birth this member [the penis] has been made to bleed and has had its covering taken away from it, it must indubitably be weakened. The Sages, may their memory be blessed, have explicitly stated: It is hard for a woman with whom an uncircumcised man has had sexual intercourse to separate from him.

2 Moses Maimonides, The Guide of the Perplexed 609 (Shlomo Pines trans., 1963) (emphasis in original).

70. Lindsay R. Watson, Unspeakable mutilations: Circumcised Men Speak Out passim (Ashburton, New Zealand, 2014) [hereinafter Watson, Circumcised Men Speak Out]. See also Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 24-26, 31-32 (giving examples of psychosexual harm from circumcision).
71. The surgical procedures are too complicated to be described here. For examples, see William E. Goodwin, Uncircumcision: A Technique for Plastic Reconstruction of a Prepuce after Circumcision, 144 J. Urol. 1203 (1990); M. J. Lynch & J. P. Pryor, Uncircumcision: A One-Stage Procedure, 72 Brit. J. Urol. 257 (1993). Julian Wan, Circumcision, in Hinman’s Atlas of Urologic Surgery 139, 144 (Joseph A. Smith, Jr. et al. eds., 3d ed. 2012), distills Lynch and Prior’s procedure in a short paragraph, but it requires medical training to follow it. I have not read of any surgery that produces either a new frenulum or a new mucous membrane for self-lubrication.
72. Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 5-6.
73. Id. at 37-43.
74. Id. at 7.
75. Id.
76. Watson, Circumcised Men Speak Out, supra note 70, passim.
77. P. F. Strawson, “Freedom and Resentment,” 48 Proc. of the Brit. Acad. 187 (1960), reprinted in P. F. Strawson, Freedom and Resentment and Other Essays 1 (1974). He recognizes gratitude and sympathy as positive reactive attitudes.
78. I am skeptical of Strawson’s position that these attitudes, which he thinks ground our practice of making ourselves and others accountable for actions and that this practice does not rest on any metaphysical conditions, eliminate any conflict between determinism and responsibility.
79. Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 7.
80. They do refer, id. at 33, to a YouGov survey reporting that 10 percent of circumcised Americans wish that they had not been circumcised. Peter Moore, Young Americans Less Supportive of Circumcision at Birth, YouGov (Feb. 3, 2015), https://today.yougov.com/news/2015/02/03/younger-americans-circumcision/ (mentioning a four percent margin of error). The report is based on 1000 adult interviews. Id. It does not say how the sample was drawn or what methodology was used.
81. E.g., Watson, Circumcised Men Speak Out, supra note 70; Gregory J. Boyle et al., Male Circumcision: Pain, Trauma and Psychosexual Sequelae, 7(3) J. Health Psych. 329 (2002).
82. Lane S. Palmer & Jeffrey S. Palmer, Management of Abnormalities of the External Genitalia in Boys, in 4 Campbell-Walsh Urology 3368 (11th ed. Alan J. Wein et al. eds., 2016), explain all of these conditions and many more. Surgical corrections for many conditions are described in Hinman’s Atlas of Urologic Surgery (Joseph A. Smith, Jr. et al. eds., 3d ed. 2012); Daniel Yachia, Text Atlas of Penile Surgery (Informa UK Ltd., 2007), available at http://kornyenko.com/files/Text_Atlas_of_Penile_Surgery.pdf.
83. For a brief discussion, see Andrew Freedman et al., Complications of Circumcision, in Surgical Guide to Circumcision 45 (David A. Bolnick et al. eds., 2012).
84. Diagnostic and Statistical Manual of Mental Disorders 423-50 (American Psychiatric Association 5th ed., 2013) (commonly known as the DSM-5).
85. Id. at 168-71.
86. I read Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 43-47, to make this point from their favorable reception of passages quoted, id. at 43, from Akim McMath, Infant Male Circumcision and the Autonomy of the Child: Two Ethical Questions, 41 J. Med. Ethics 687 (2015).
87. 2 The Complete Monty Python’s Flying Circus: All the Words 124-25 (1989) (boldface types and italics in original):
Zorba [John Cleese] Tonight molluscs. The mollusc is a soft-bodied, unsegmented vertebrate usually protected by a large shell. . . .
Mr Jalin [Terry Jones] Disgraceful! I don’t know how they’ve got the nerve to put [a documentary on molluscs] on.
Mrs Jalen [Graham Chapman] It’s so boring.
Zorba Well, it’s not much of a subject . . . be fair.
. . . .
Zorba However, what is more interesting, er . . . is the molluscs’s er . . . sex life. . . . Yes, the mollusc is a randy little fellow whose primitive brain scarcely strays from the subject of you know what. . . .
Mrs Jalin (going back to the sofa) Disgusting!
Mr. Jalin But more interesting.
88. See supra text accompanying note 28 and the reference to Laqueur, Making Sex in note 28 supra.
89. Robert Darby, A Surgical Temptation: The Demonization of the Foreskin and the Rise of Circumcision in Britain (University of Chicago Press 2005). For a broader history of male and female masturbation with only passing attention to the male prepuce, see Thomas W. Laqueur, Solitary Sex: A Cultural History of Masturbation (rev. ed. 2004).
90. Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 18 (footnote omitted).
91. Id. at 26.
92. Id. at 19. See infra text accompanying notes 107-115.
93. Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 18.
94. Frank H. Netter, Atlas of Human Anatomy Plate 393 (Ciba-Geigy Corp., Summit, NJ, 1990).
95. Id. at Plate 394.
96. Id. at Plate 354-Plate 366 (showing these structures at various levels of dissection).
97. C. J. Cold & J. R. Taylor, The Prepuce, 83 Brit. J. Urol. 34, 35 (Supp. 1, 1999). I am not saying that their approach is entirely embryological.
98. Id. at 35. They explain some of the details in id. at 38-39. For still more detail, see John M. Park, Embryology of the Genitourinary Tract, in 4 Campbell-Walsh Urology 2823 (Alan J. Wein et al. eds., 11th ed. 2016).
99. Cold & Taylor, supra note 94, at 35.
100. Id. at 38-40.
101. Id. at 35.
102. Separation comes in a range from shortly after birth until age 17, with separation typically arriving between the ages of two and 14. Id. at 35-36.
103. Id. at 38 (bold type omitted).
104. Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 19.
105. Id. (footnote omitted).
106. Id.
107. Id. at 19 n.41. Robert Darby & J. Steven Svoboda, A Rose by Any Other Name? Rethinking the Similarities and Differences between Male and Female Genital Cutting, 21(3) Med. Anthro. Q. 301 (2007) [hereinafter Darby & Svoboda 2007].
108. J. Steven Svoboda & Robert Darby, A Rose by Any Other Name? Symmetry and Asymmetry in Male and Female Genital Cutting, in Fearful Symmetries: Essays and Testimonies Around Excision and Circumcision 259 (Chantal Zabus ed., Rodopi, Amsterdam and New York, 2008) [hereinafter Svoboda & Darby 2008]. Earp & Darby, Circumcision, Sexual Experience, and Harm, supra note 10, at 19 n.55, refer to these two articles.
109. Darby & Svoboda 2007, supra note 104, at 308. They suggest that one could “break the WHO definition down more precisely into at least seven procedures.” Id.
110. Svoboda & Darby 2008, supra note 105, at 262-64. Oddly, the 5-point scale, id. at 262-63, does not have the same wording as Darby & Svoboda 2007, supra note 104, at 308.
111. WHO Fact Sheet 2016, supra note 33, states: “FGM is recognized internationally as a violation of the human rights of girls and women. . . . FGM has no health benefits, and it harms girls and women in many ways. . . . Since 1997, great efforts have been made to counteract FGM.”
112. Svoboda & Darby 2008, supra note 105, at 262-63. Footnotes within the block quotation are mine. Their purpose is to clarify Earp and Darby’s vocabulary and views and to place them in context.
113. At birth, the foreskin almost always adheres tightly to the glans. To accomplish neonatal circumcision of Types 3, 4, 4A, 4B or 4C, the circumciser needs to bluntly dissect the foreskin from the glans by using a probe or similar instrument, or using fingers to tear them apart.
114. Type 2 is identical with, or at least similar to, what Jewish tradition knows as circumcision milah. Cf. the covenant of circumcision (bris milah) between God and Abraham in Genesis 17:9-14.
115. The corona is the crown of the glans. The groove immediately below it is the coronal sulcus.
116. Type 4B is identical with, or at least similar to, what the Jewish tradition calls circumcision milah and peri’ah. It appears to have been introduced in the second century C.E. to prevent epispasm by milah-circumcised men. Epispasm is pulling remaining skin from the penile shaft past the glans and then holding it in place with a string or circular pin. In Greco-Roman times, some Jewish men visited gymnasia and participated in athletic contests in which men were naked. 1 Maccabees 1:15-16. The purpose of epispasm was to conceal the circumcised state of their penises. The rabbis pretty much put a stop to it by insisting on a unified procedure of milah and peri’ah. For an excellent brief treatment of Jewish doctrine and practices, see Circumcision, in 4 Encyclopedia Judaica 730 (Macmillan Reference, 2d ed., 2007) [hereinafter Jewish Circumcision].
117. If there is not enough slack tissue to accommodate an erection, the result would, I think, commonly be described as a complication or a botched circumcision. It would be odd to intend to produce such a result.
118. Most forms of Type 5 are anthropological curiosities. A meatotomy is an incision to enlarge the opening of the urethra at the tip of the penis (urethral meatus). A subincision is slitting open the underside of the penis from base to tip to create an appearance similar to that of the vulva. Infibulation, in the male context, is the closing up of a subincision. As to implants, Svoboda and Darby have in mind the insertion of foreign objects under the penile skin rather than medical implants. Compare Modern Primitives: An Investigation of Contemporary Adornment and Ritual 156-57 (V. Vale & Andrea Juno eds., San Francisco, Re/Search Publications, 1989) (describing the implantation of small pearls under the penile skin by Yakuza in prison), with J. Francois Eid, Surgery for Erectile Dysfunction, in 1 Campbell-Walsh Urology 709 (Joseph A. Smith, Jr. et al. eds., 11th ed. 2016) (describing the implantation of various types of prostheses to treat erectile dysfunction).
119. Stedman’s Medical Dictionary 620 (25th ed. illustrated, 1990), s.v. “frenum,” sense 1; s.v. “frenulum.”
120. Jewish Circumcision, supra note 113, at 732.
121. Cold & Taylor, supra note 94, at 35-36.

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