A Strategic Approach to End Infant Circumcision in Canada

Note: This approach went into effect 2 years ago. As of today, Canada has drastically reduced their rate of MGM so that now about 9% of baby boys born nation wide are cut at birth. This compares to about 32% of baby boys born in the United States who continue to be subjected to circumcision surgery at birth.

Association for Genital Integrity: Canada's Court Challenge

INTRODUCTION

This document has been drafted by a group of Canadians dedicated to reducing and eventually eliminating the practice of infant male circumcision in Canada. We welcome comments, criticisms, and suggestions from all visitors.
The practice of neonatal circumcision has come under increasing fire lately for two reasons:

1. Scientific studies have shown that circumcision removes specialized sexual tissue.
   
2. Canadians are becoming increasingly aware of the need to promote and protect human rights.

The case against infant male circumcision is not being given a fair hearing by the authorities. This document outlines a strategic approach to obtaining such a hearing in court.

BACKGROUND

The debate over circumcision has focused on medical pros/cons, parental preferences, and religious beliefs. Our goal is to direct attention to the ethical, legal, and human rights issues raised when part of a normal organ is summarily removed from a person who has no medical need for surgery and who is legally incapable of giving informed consent. For the most part, these critically important issues have been ignored.
Work done in Canada to date suggests that none of the agencies involved in regulating infant male circumcision (colleges of physicians and surgeons, human rights commissions, children's advocates, children's aid societies, ministers of health, ministers of justice, solicitors general) are prepared to show leadership on this issue. Consequently we believe the only way to bring about change is through the judicial system.
We propose a legal challenge to section 268 of the Criminal Code of Canada on the grounds that this section is insufficient in scope. Section 268 prohibits all forms of female genital mutilation (FGM). The basis of the challenge would be that section 268, as written, fails to protect males from genital mutilation and thus contravenes at least one provision of the Canadian Charter of Rights and Freedoms—namely, section 15(1), which guarantees equality between the sexes. It is highly probable that section 268, as written, also contravenes section 7 of the Charter, which guarantees security of the person.
Section 268 of the Criminal Code provides:

[Excerpt from Chapter C-46—An Act respecting the Criminal Law (Criminal Code)]
Aggravated assault
268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
Punishment
(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Excision
(3) For greater certainty, in this section, "wounds" or "maims" includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where
(a) a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or
(b) the person is at least eighteen years of age and there is no resulting bodily harm.
Consent
(4) For the purposes of this section and section 265, no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).
R.S., 1985, c. C-46, s. 268; 1997, c. 16, s. 5.
[End of excerpt]

The above section of the Criminal Code names body parts found only in females: the labia majora, labia minora and clitoris. The use of such gender-specific anatomical terms implies that males are not protected equally under the law. Males, no less than females, are subject to an unnecessary surgical intervention on the genitals—namely, non-therapeutic circumcision. The difference in the degree of protection conferred on males as compared to females is an obvious violation of section 15(1) of the Charter.
Furthermore, infant male circumcision contravenes the section 7 Charter rights of non-consenting males to "security of the person and the right not to be deprived thereof."
The relevant sections of the Charter are as follows:

[Excerpt from Constitution Acts 1867 To 1982, Constitution Act, 1982, Schedule B Constitution Act, 1982 (79), Part I Canadian Charter of Rights and Freedoms]
Life, liberty and security of person.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Equality before and under law and equal protection and benefit of law.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[End of excerpt]

The intent of the challenge is not to have section 268 repealed or to eliminate the protection women rightly deserve. The objective is to have the government of Canada recognize that males deserve equal protection under the law. It is extremely important to note that explicitly conferring such protection on males would not in any way diminish the protection provided to females.

LETTER-WRITING CAMPAIGN

An ongoing letter-writing campaign forms a key part of the strategic approach. Standardized letters have been sent to the organizations and public officials connected with regulating various aspects of neonatal circumcision. These organizations and public officials include:

• Colleges of physicians and surgeons
• Human rights commissions
• Children's advocates
• Children's aid societies

In each case, the initial letter asks the authorities to clarify their position on non-therapeutic infant male circumcision. The purpose of the initial letter is to determine whether or not anyone is showing leadership on this issue. Subsequent letters ask pointed questions from various perspectives (ethical, legal, human rights) with a view to promoting dialogue with the authorities and bringing about action.
The responses received to date have been evasive. The authorities seem set on avoiding the important ethical, legal and human rights issues raised by non-therapeutic circumcision of male infants.
The letter-writing campaign has shown that systemic discrimination with respect to the issue of genital mutilation is deeply embedded in the Canadian social fabric. We believe the information and evidence gathered by this campaign can be used to develop a case and initiate a formal legal challenge.
Below is a brief survey of the replies to the standard letters:

Colleges of physicians and surgeons. The replies have documented inconsistencies between organizations in different provinces, non-compliance with legislation, and above all, evasiveness. Only one college (Alberta) made an attempt to answer the 10 questions included in the standard letter. The President of the Nova Scotia college, Dr. Patricia Pearce, stated categorically that neonatal circumcision was a "legal medical act," though the lawfulness of this practice has been questioned by experts such as Dr. Margaret Somerville, a law professor at McGill University and one of Canada's leading medical ethicists. Like the representatives of several other colleges, Dr. Pearce did not adduce any evidence in favour of her position and simply declined to discuss the matter further.
Faced with the inescapable fact that infant male circumcision is not medically necessary, the colleges of physicians and surgeons have abdicated their responsibility to establish and monitor standards of professional ethics among medical practitioners. The colleges' responses to the standard letter make it clear the colleges are not prepared to give due consideration to the ethical, legal and human rights implications of neonatal circumcision. By defending the rights of physicians to undertake an unnecessary surgical intervention without the personal consent of the patient, the colleges have placed themselves in an untenable position.
Human rights commissions. The standardized letters have revealed that the commissions are unwilling at the present time to deal with the gender equality issues associated with circumcision. None of the commissions have policies on male circumcision, and only the Ontario commission has a policy on female genital mutilation (FGM). The references to male circumcision in this policy were recently revised to reflect the position of the Canadian Paediatric Society. The policy used to characterize male circumcision as beneficial. The policy changes were brought about through successful lobbying by Canadian activists.
Children's advocates. Standardized letters have recently been sent to the children's advocate in each province. The responses have been evasive. The Alberta reply, for example, advises that questions related to circumcision should be directed elsewhere.
Children's aid societies. Of all the authorities to whom we have sent a standard letter, the children's aid societies seem to be the most forthcoming in their responses. The acting executive director of Manitoba Child Protection and Support Services stated that she took the issue seriously and would be prepared to participate in public discourse and legislative review.
Government officials. We believe that one way of obtaining open and aboveboard responses from the colleges of physicians and surgeons may be to request the assistance of the appropriate minister. Most provincial legislation allows the minister in charge to make specific requests of the college councils and registrars. This approach has borne fruit in B.C., where the ministry of health has sent a letter to the provincial college of physicians and surgeons asking the college to expedite its response to questions about the ethical and legal implications of routine infant circumcision.

GAPS TO BE FILLED

To round out the documentation, more letters must be written to leading ethicists, human rights experts and children's rights advocates. This will provide further information on the positions of public bodies and individual Canadian scholars.

WHY GO TO COURT?

Over the past few years many Canadian agencies, both governmental and non-governmental, have been approached by citizens on the subject of non-therapeutic infant male circumcision. Concerned individuals have written hundreds of letters to public officials such as the federal minister of justice, provincial cabinet ministers, heads of child welfare agencies, and the registrars of colleges of physicians and surgeons in all Canadian jurisdictions. (Nearly 500 such letters are available online).
Unfortunately these authorities are very reluctant even to respond to arguments against routine infant circumcision, much less weigh the facts and provide leadership in eliminating the practice. There seems to be no alternative to using the courts as a way of ensuring that the rights of baby boys are respected and that systemic discrimination against them on the basis of sex is eliminated.

HOW WILL THE COURT CHALLENGE BE FUNDED?

A national non-profit organization called the Court Challenges Program (CCP) was set up in 1994 to provide funding for cases that seek to defend language or equality rights. An application for funding from the CCP is being drafted; this application can be viewed online.
Note that this is only an application for funding case development. It does not mark the launching of a legal action. There is no guarantee the CCP will allocate funds for our proposed action.
The case development includes gathering information, showing evidence of discrimination, and obtaining expert advice. A substantial amount of evidence has already been gathered, but more work remains to be done.
At present, the main supporting document for the application is a paper by Dr. Arif Bhimji entitled "Infant Male Circumcision: A Violation of the Canadian Charter of Rights and Freedoms." Other documents and papers have also been collected. These will be used in the application for funding and in any subsequent formal challenge.

HOW CAN YOU HELP?

We welcome ideas and suggestions from individuals who are knowledgeable about circumcision. We would also like to acquire copies of correspondence with public bodies on this subject. If you possess letters that we do not already have on file, please contact us using the feedback link below.
Once a legal challenge has been launched, we may require additional funding to take our case to court. We hope you will be able to contribute.

*For measures being taken in the United States to end legalized MGM (male genital mutilation) of infant boys, see MGMBill.org. FGM (female genital mutilation) continued in the United States until it became illegal and punishable as a crime with the FGM Bill in 1996.

*One man who sued and won tells his story here.