Tag Archives: UN

Death and Homosexuality: The Unrecognized Genocides

Death and Homosexuality: The Unrecognized Genocides

Tom Henheffer

St. Thomas University

7 April 2009

There have been four distinct periods of crime committed against homosexuals in the past century. Homosexuals were victims of genocide during the holocaust. After this, they became victims of what some may call a “psychological genocide,” where the western medical world tried to wipe out their lifestyle. Currently, homosexuals are targeted for death and life imprisonment in over a dozen countries. In the future, some scholars fear that in utero testing, combined with research in the human genome project, and discrimination, will lead to the total destruction of homosexuality in some areas. Genocide has been a near constant for homosexuals in the 20th century, and it shows no signs of ending, but the international community has failed to recognize the plight of gay men and women. Homosexuals have no document in international law protecting them from discrimination, and sexual groups are conspicuously left out of the genocide convention. For justice to be served, the genocide convention must be modified, but it must be done so effectively, without becoming overbroad. The psychological genocide provides a good test for overbroadness.

This modification will be very difficult, it will have to be the end result of a long process of human rights advocacy and new human rights documents; many attitudes will have to be changed in the world before this can happen. But the convention must be modified so the genocide of Nazi Germany can be recognized, the criminality of homosexuality on pain of death or life imprisonment cam be eliminated, and human rights can become prepared to handle the future consequences of genetic research.

Homosexuality has been a part of human society since before recorded history. The first evidence of it in human culture comes from cave paintings and sexual toys from 12,000 BC. In western culture, homosexuality has always been synonymous with Greek culture. In 620 BCE Sappho was born (Stuart 5). This female poet, from the island of Lesbos, is believed to have been the first female writer to express desire for the same sex. The term lesbian also comes from the island on which she lived. Socrates, born in 470 BCE, was one of the world’s most influential philosophers, and he was known to be bisexual (5). The warrior Spartan culture also encouraged sexual relationships among men. Even Leonardo da Vinci (6) and Oscar Wilde (Stonewall 1) were both tried and persecuted for homosexuality.

It has only been in more recent times that homosexuals began to undergo systematic and government sanctioned discrimination. As Doris Bergen states in War and Genocide, “in the ancient world certain types of intimacy between people of the same sex did not carry any stigma or preclude sexual relations with members of the opposite sex,” (22). 1290 saw the “first mention in English common law of a punishment for homosexuality,” (Stonewall 1). Ten years later there was a “treatise in England prescribed that sodomites should be burned alive” (1). However, the term homosexual was not coined until 1869 in Germany (1). This discrimination and punishment came to a head in Nazi Germany.

Germany was not a particularly tolerant place before WWII. Homosexuality was outlawed in 1871, and remained so until 1970 (22). But after WWI Germany developed a vibrant, and some might say outspoken, gay culture (Bergen 23). It had a large homosexual club scene and was host to the Institute for Sexual Research, run by the homosexual gay rights activist Magnus Hirschfeld (23). The publicity and openness surrounding the gay scene in Germany may have been part of its downfall. As Bergen says, “for others it seemed to represent the decadence of a society that had abandoned its traditional values,” (23). This meant that homosexuals could be easily victimized, and that they would have no friends when the Nazis came to power.

Hitler himself seemed to have few problems with gay men before the war. His long-time, right-hand man, Ernst Rohm, was openly gay. He was the head of the 2.5 million strong SA (70-71). It was not until the morality of Rohm’s sexual preferences could be expediently used against him that Hitler chose to begin a campaign of hatred against homosexuals. It was a familiar pattern Hitler used, building support for his cause by inciting hatred against marginalized groups (23).

The Nazi persecution of homosexuals started suddenly and escalated rapidly. With the overt and vibrant gay scene homosexuals were an easy target. Bergen says, “many Germans regarded homosexuality as deviant and decadent and urged their government to crack down,” (57). Thanks to the law of 1871, homosexuals were also criminals, and the Nazi’s considered gay public officials to be easily corruptible targets for blackmail (57). Bergen says that Nazis, “struck in dramatic, decisive ways, but they always tested the public response to each move before proceeding further,” (57). This was a litmus test for Hitler; he could start his campaign of hate by attacking the most easily marginalized group in Germany. Then it would be easy to escalate and attack other groups, Roma, Jews, etc. In this way, the persecution of homosexuals was instrumental in bringing about the preconditions for the holocaust and World War II.

The raids started in 1933. Nazis closed down gay clubs and arrested those inside, sending them to the concentration camp at Dachau (66). Students then destroyed Magnus Hirschfeld’s Institute for Sexual Research. As Bergen puts it, “the German public was indifferent or cheered such offensives,” (58). Hitler saw his people did not care, and he could continue with his plan.

The Night of Long Knives came in June of 1934 (70). Hitler used it to remove Rohm, as he was afraid Rohm was gaining too much power. Many high ranking Nazi officials were murdered, anywhere from 150 to thousands. It was called “a cleanup of the movement, a necessary measure against decadence and perversion,” (71). Hitler got a telegram from President Hindenburg congratulating him, his military leaders supported the move, the German people did not care and the German government even made the actions retroactively legal (71). Similar tactics were later used to oust Frieherr Von Fritsch, the head of the German army, in 1936 (80). All of this was able to happen because of the culture of discrimination in Germany; the murders were wrapped in the idea of restoring morality, of removing homosexuals, the decadent and deviant. Gays had no place in the Third Reich; they refused to do their duty and reproduce. This is of course extremely ironic. If homosexuals did not reproduce, they could not possibly be a threat to future generations. But that did not matter to the Nazis.

As war continued, more homosexuals were put into concentration camps. Nazis called them antisocial parasites and enemies of the state (US Holocaust Memorial, Denunciations). They relied on denunciations, and then used torture to force victims to denounce others (US Holocaust Memorial, Denunciations). The camps were difficult and often deadly for everyone interred, but they had especially brutal conditions for homosexual men. Marked with pink triangles (Bergen 189), gay men were marginalized even by their fellow inmates. There was a hierarchy in concentration camps; the bottom was reserved for Homosexuals, Jews and Gypsies. Gays were isolated and tormented. They received especially harsh treatment from homophobic prisoners Nazis put in charge of them (189). They “suffered severely from torture, beating, and medical experimentation,” (192). And their situation would only get worse. [1]

Before the war, gay men were generally put in prisons under definite sentences. At the wars beginning, their sentences were expanded and they were moved to camps, at first for re-education, and later for labour and death. Unlike most other prisoners, gay men were sometimes able to leave some camps. They had the option of castration and reassignment to heavy labour or front-line duty (192). In one camp they would be released to labour duties if they renounced their sexuality and managed to “perform,” with a prostitute (192). But this did not change their status as victims of genocide, this seemingly preferable treatment was a ruse, it only changed the method the Nazis would use to destroy gays.

In 1942, there was a new, specific policy for dealing with homosexuals. It was called, “extermination through work,” (US Holocaust Memorial, Persecution and the War) and was directly issued by Heinrich Himmler, head of the Nazi SS. Although not the same method as the gas-chambers, this campaign had the same goal of eradication. It demonstrates a clear intent by the Nazis to wipe out homosexuals in Germany and its occupied territories.

In all 50,000 men were arrested for “charges related to homosexuality” (Bergen 191) during the Nazi regime. During the war approximately 5-15,000 were put in camps (US Holocaust Memorial, Protective Custody). About 5-7000 died during the war, probably half of them in concentration camps (Bergen 192). Although these numbers are low, it represents one of the highest per-capita death rates of prisoners in WWII at an estimated 60 per cent (192). Political prisoners suffered only 41 percent losses, Jehovah’s witnesses 35 percent, (192). Overall in Europe, 67 percent of Jews were murdered.

Unfortunately for homosexuals, their situation after the war frequently went unimproved. Prejudices against gays were still rampant in many countries. Homosexuality remained illegal in Germany until the 1960s (193). Bergen says, “illegality and social stigma account for the silence that shrouded the treatment of gay men in Nazi Germany until the 1970s and 1980s,” (193). As of 1997, homosexuals had still not received an official apology from the German government (Benetto). It is incredible to think that a country so obsessed with not reliving the mistakes of its past could, for decades, deny the victimization of an entire group of people during WWII. Even worse than this, many gay men were liberated from concentration camps, then tried and sentenced again by occupiers, and thrown into other prison camps.

It is easy to analyze the human rights situation of homosexuals in Nazi prison camps; there were no rights. Basically every tenant of every human rights convention and declaration was violated by the Nazis. The human dignity of those men and woman, dignity being the source of all rights, was as close to being nullified as possible. They had no freedoms or liberties, no freedom of thought, speech or assembly, no security of the person, no freedom of religion; they were as dehumanized as any people have ever been. The only source of dignity these prisoners had was from the fact that they were human beings. Their rights were clearly violated, and a horrible crime was committed against them. But the question remains, did homosexuals undergo genocide during WWII?

The United Nations Convention on the Prevention and Punishment of the Crime of Genocide (herein referred to as the genocide convention) defines genocide as, “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” (Article II). These acts are,

(a)    Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group (Article II)

The order from Heinrich Himmler that homosexuals were to be exterminated through work clearly shows and intent to destroy on behalf of the Nazi government. This meets the first requirement of the genocide convention. Homosexual men were killed, caused serious bodily and mental harm, and they were placed in situation calculated to destroy them, especially when they were sent to labour camps. This easily meets three of the 5 conditions for genocide in article II. So it seems that the case for calling this a genocide is very clear cut.  However, in order to be a victim of genocide, the genocide convention says that one must be a member of a targeted “national, ethnical, racial or religious group” (Article II). Sexual groups are not included. This means that the treatment of homosexuals during the holocaust is not recognized as such under international law. But what happened to homosexuals was genocide. The lack of recognition in international law is arbitrary, unjust and most likely a product of the prejudice against gays that still existed when the genocide convention was written (and which still exists in many places of the world today). The genocide convention is lacking and must be reformed so that this genocide is recognized, so that ongoing genocides can be stopped, and so possible future genocides can be prevented. However, this change must be done extremely carefully. In order for the genocide convention to remain effective, it cannot be overbroad. The aim of this essay is to further outline the position of homosexuals as victims of genocide, and to provide context and recommendations for creating effective human rights protections.

As evidenced above, homosexuality was not considered amoral, criminal or a disease until fairly recently in western culture. Gender identities were not always so rigid, but once they became stringent homosexuals were in for a world of trouble. After the common outlawing of homosexuality in western society, and after the genocide against homosexuals during WWII, came the psychological war on gays. This started when the Diagnostic and Statistical Manual of Mental Disorders (DSM), was published in 1952. Until the DSM was modified in 1973,

homosexuality was a certified psychological disorder by virtue of the fact that it was registered as such in the Diagnostic and Statistical Manual of Psychiatric Disorders (DSM), the primary diagnostic manual for the American Psychological Association and the American Psychiatric

Association. (Rixecker 115)

As a disorder, psychologists treated homosexuality like cancer, something in need of a cure. Non-heterosexual behavior was considered to be an affliction that people could suffer from (Rixecker 114). The disease had to be cured, so people could again “lead a normal, useful life” (Rixecker 115). There was an argument over how to treat homosexuality; Scientists were not sure if homosexuality was due to, “genetic mutation- or poor environmental conditions-e.g. psychological disorders brought on due to a poor childhood” (Rixecker 115). This led to many different forms of treatment under the blanket label of “conversion therapy” (Rixecker 115. Treatment methods included, “masturbatory reconditioning and aversion therapy. … social skills training, cognitive restructuring, hypnosis, (and) abstinence training” (Cramer 95). Some treatments went so far as to use, “electroconvulsive therapy, surgical interventions (e.g., lobotomy, castration, ovary removal), and hormonal therapy (e.g., steroids, androgens…” (Cramer 95). Today, many of the less invasive techniques are still used, and the frequency of religious techniques (like prayer and threats of damnation) has greatly increased (Cramer 95). Unfortunately, there are no clear numbers on the amount of conversion therapies performed at any time in history (Cramer 95).

The most extreme forms of conversion therapy are very obviously harmful, and sometimes in a physical as well as mental way. However, less extreme forms are still known to cause harm. Firstly, they are almost never successful, instead they just “decrease the overall sexual arousal of participants” (Cramer 101). They are also known to increase shame, conflict, fearfulness and vulnerability to conformity. More severe (but still very common) side-effects include, “long-term sexual dysfunction, lowered self-esteem, loss of family and religiosity, and elevated depression and anxiety” (Cramer 101).

As previously mentioned, homosexuality is no longer categorized as a disease in the DSM. The American Psychological Association (APA) and the American Psychiatric Association are generally both opposed to conversion therapy (Cramer 94). However, conversion therapy still continues, and has not been specifically outlawed by the APA, thanks to lobbying from some pro-conversion therapy members (Rixecker 116). Many doctors still believe in conversion therapy and are constantly lobbying the APA to loosen its guidelines toward the practice.  The strongest lobbyist for the re-mainstreaming of conversion therapy is the National Association for Research and Therapy of Homosexuality (NARTH). The organization’s goals and ideas are not based on fact or justice, but it is still a powerful force. As Rixecker says, “NARTH was instrumental in challenging the American Psychological Association’s recent attempts at imposing a professional sanction on those who perform conversion therapies” (116).

The conversion therapy of the 50s through to today is not an isolated incident. It reveals a culture of discrimination against homosexuals that has led to stigma and violence. During that time psychologists attempted to eradicate homosexuality. Like annihilating cancer, homosexuality was a blight that doctors tried to erase. In a culture like this, the rights of gay men and women were often violated. The right to security of the person under article 3 of the UDHR is violated by the harm caused by conversion therapy. Some forms of CT, such as aversion therapy, which often leads to sexual dysfunction, or electroshock, or removal of parts of the body, can be easily labeled as cruel, inhuman or degrading treatment under article 4. The attempt to change sexual orientation is an encroachment on the freedom of thought under article 18. Article 7 is violated by the clear discrimination against homosexuals evident in the DSM’s definition of homosexuality as a disease, and article 8 is violated because no effective remedy for these crimes has ever been given to homosexuals. Other rights are also violated under the UDHR and other international human rights treaties, but they will not be discussed for the sake of brevity.

It is clear that CT and the culture around it led to many violations of the rights of homosexuals. But the real question is whether or not this psychological attempt to eradicate homosexuality can be called genocide. The answer is no. As a group, there was no “intent to destroy, in whole or in part” (Genocide Convention Article II) homosexuals. The target was homosexuality itself. During WWII Nazis tried to destroy Jews, not just Judaism, and homosexuals, not just homosexuality. Also, none of the five conditions of the genocide convention were met by the “psychological genocide”. The third condition is, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” (Article II). The APA did try to bring about the destruction of the condition of homosexuality, but again, not homosexuals themselves. As such, defining this era in western medicine as genocidal goes too far. It is not true to the idea of the genocide convention.  Modifying the convention to include this incident would certainly lead to over broadness and a sharp decrease in effectiveness. But research into the psychological non-genocide is still useful, as it can be used as a test to prevent over broadness when modifying the genocide convention. It proves that there is no reason to modify the five acts in article II.

Behind the idea of homosexuality as a disease is the concept that it is somehow immoral, decadent, or abnormal. This concept has led many countries to criminalize sodomy and lock up “practicing” homosexuals. Same sex unions are legal in only five countries in the world, sodomy is illegal in 70 (Amnesty International love, Hate and the Law). This is a problem inherent throughout the world; sodomy was illegal in many US states until the laws were repealed by the Supreme Court in the 2003 case Lawrence vs. Texas (SodomyLaws.org, USA Laws). Sodomy often has a broader definition then sexual acts between same-sex couples, but frequently is only enforced against homosexuals (SodomyLaws.org, USA Laws). These laws reveal a culture of hatred and discrimination, but are not genocide. However, the argument for a genocide against homosexuals can be made in the case of thirteen countries; Afghanistan, Bangladesh, India, Iran, Mauritania, Myanmar, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, Sierra Leone, Sudan, Uganda, United Arab Emirates, and Yemen.  Each of these countries has not only outlawed homosexuality, but has made it punishable by death or life imprisonment (Amnesty International). Also, Islamic Sharia law, which is practiced in parts of many countries, carries a penalty of death by stoning for an act of homosexual sex (Gay Law Net, Nigeria).

Genocides may also be ongoing in other places. Although homosexuality is not punishable by death or life imprisonment in the country, there have been claims made that the government of Columbia has specifically targeted homosexual men for destruction. The murders are carried out by the Columbian police force, who either kill or disappear men known to be gay (Rixecker 122).  In the late 80s, 328 gay men were killed in the city of Medellin alone (Rixecker 122). A male prostitute is quoted as saying, “the only program the government has for (gay men) is a program to kill us” (122). There is also an unlabeled genocide ongoing in Iraq.  Shia death squads are rampantly murdering men suspected of being gay and children forced into same-sex prostitution (Copestake). The murders are considered honor killings, and as such are not punishable by Iraqi law (Copestake). The killings began when a fatwa against homosexuals was issued by Grand Ayatollah Ali al-Sistani  (Ireland).

This is an example of a law enacted against homosexuals from Uganda. Section 145 of the penal code says that anyone who:

(a) has carnal knowledge of any person against the order of nature;
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence and is liable to imprisonment for life.

It is interesting to note that under this law, two consenting adult men engaging in sexual relations are committing a crime equal to bestiality. That dehumanizing comparison is a common feature of the laws in many of these countries. Laws like this help to foster discrimination, and create an environment where dehumanization makes genocide possible.

A government legislating death or life imprisonment onto a distinct social group clearly reveals “intent to destroy, in whole or in part” (Genocide Convention Article II). The same intent is revealed in the gay fatwa in Iraq, and possibly the first-person accounts of police murders in Columbia. The death penalty meets the Genocide convention’s first condition, “killing members of the group” (Article II A), as do the killings in Iraq and possibly those in Columbia. Life imprisonment meets the second condition, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” (Article II B), as the ultimate end of life imprisonment is death.

Unfortunately for the victims of these crimes, their deaths and sentences do not meet the standards of international law. Again, this is because homosexuals are not, as a group, members of “a national, ethnical, racial or religious group” (Article II), as required by the genocide convention. Once again, homosexuals are left in the dark without any defense in the international community. This is not justice; it is an arbitrary and prejudicial exclusion. These genocides are a severe threat to human dignity, and are crimes against humanity that, at least indirectly, affect every person on the planet. The government legislation itself is a violation of that right from which all others flow, the right to human dignity. When governments specifically targeted  Jews in Germany or Tutsis in Rwanda for death, the actions were labeled genocide. But when a government targets homosexuals, who have no choice in deciding their sexuality, just as a person cannot choose race, they are not protected by the genocide convention. This makes no sense. Like political groups, homosexuals are left out. But unlike political groups, homosexuals are much more vulnerable. They are too small a minority to band together and fight and they cannot choose to stop being gay.

There are some possible justifications for not including sexual groups in the genocide convention, but none hold any water. The first justification is that, unlike Jews or Tutsis, the child of a homosexual will not necessarily be a homosexual. This is irrelevant to the genocide convention, as the effectiveness of genocide does not matter, only the “intent to destroy, in whole or in part” (Article II). The second justification is that, unlike destroying all Jews or Tutsis, homosexuality would still exist even if all homosexuals were killed in a certain area. In the next generation, 6-10 percent of people would still be gay, as the causes of homosexuality are probably not entirely hereditary, and even if they are, straight people can still have gay children. But contrary to this justification is that same fact, the effectiveness of genocide does not matter, only intent is important in regard to international law. A possible third justification is that there simply aren’t enough homosexuals being killed to justify international intervention. This may be true; homosexuals are generally a small minority. But the size of targeted group makes no difference if the intent to destroy them is there. Also, including sexual groups in the genocide convention would create pressure for change outside of interventionist methods. Aside from a lack of international consensus, there is no reason to exclude homosexuals as victims. Their exclusion only allows genocides to continue, while making human rights impotent to prevent possible future genocides. And the future holds some very disturbing possibilities.

There is one final genocide left to discuss, the possible in utero genocide against homosexuals. This could be born out of increasing genetic and in utero research. It is thanks in large part to the Human Genome Project (HGP), which is an attempt to map the entire human genome (Rixecker 109). Rixecker says the project itself will ultimately “impact upon the scientific, medical, economic, political and cultural futures of all living and future human beings” (109). Of that fact there is no doubt. However, the way the HGP will impact humanity is debatable. The HGP has potential to lead to cures for certain types of cancer, cystic fibrosis, Parkinson’s, Alzheimer’s and many other diseases. However, genetic research has already been controversial; its identification of down syndrome being linked to a chromosome 21 trisomy, combined with prenatal genetic screening, has led to women being able to abort children with the genetic disorder (National Institute of Child Health and Human Development). There is a large ethical debate to be had around this type of research, a debate which could have serious consequences for sexual minorities.

Stephanie Rixecker, a human rights scholar and professor at Lincoln University, is very critical of the ethics surrounding genetic research and the HGP. She says there are not enough safeguards for the ethics of researchers. She says the laws and societal norms governing research are, “insufficient for protecting people who cannot defend themselves” (110). She also feels that, “ethics, law, policy, justice and human rights … are not sufficiently mature to handle and address the immediate (and long-term) consequences of the HGP” (109). Rixecker feels that in the end, economic interest may win out against moral and ethical interest (109). As the abortions resulting out of the test for Down syndrome demonstrate, the limits of morality are already being tested.

This ethical situation becomes even more interesting when it is turned toward sexuality. There is a division between scientists who feel sexuality stems from nature and those who feel it is biologically determined. However the standard today is generally that which is described in the DSM, that “human beings cannot choose to be either gay or straight” (115). This suggests that there is at least some genetic element to homosexuality, most likely combined with other factors such as in utero chemical balances, and influences a child receives as he or she grows up (118). Many genetic researches are attempting to prove that homosexuality is mostly biological, or at least that it is the result of a biological precondition. Often this is done with the reason of ending discrimination against gays and lesbians by proving their sexuality is “natural” (110). The problem is that proving homosexuality is biological will not necessarily end any discrimination, and finding the genetic markers that indicate a precondition for homosexuality may have serious ethical consequences.

Research into the Xq28 gene has shown a strong link to homosexuality in some men (Rixecker 110, footnote 3), which provides some strong evidence that homosexuality is indeed at least partially genetic.[2] Despite the many factors that may contribute to the development of sexuality, the genetic evidence is particularly striking. When this genetic knowledge is combined with reproductive biology and in utero screening, it is possible to detect and abort fetuses that have the Xq28 gene (or possibly other genes that have yet to be discovered). In the future “genetic alteration and ‘enhancement'” (110) may also be possible. This means that mothers, who can already conceivably abort fetuses with a genetic predisposition to homosexuality, may actually be able to modify fetuses to erase that predisposition. Additionally they could possibly, “through the use of preimplantation genetic diagnosis … embryo selection and cloning … and in vitro fertilization, pre-select for certain traits, including the lack of homosexuality” (110).  This obviously raises incredible ethical questions and could have serious consequences for the gay community. This is what Rixecker fears is the opposite side of the discovery of the so-called “gay gene” and one of the worst possible outcomes of the HGP. The techniques that could facilitate this situation are already in existence, and as the Down syndrome case demonstrates, have already been used to select fetuses for abortion. Rixecker says this means “the eradication of homosexuality in small cultural groups or on a global scale is theoretically feasible” (111).

So what does this mean in the real world, and with the current definition of genocide? In her essay Rixecker outlines a clear climate of hatred toward homosexuals in many countries. She notes that despite pressure from organizations like Amnesty International, the UN has not adopted any documents that provide significant protection for sexual minorities (120). The crux of the question is really this, will there ever be a broad campaign aimed at wiping out homosexuals, through the use of in vitro genetic manipulation or testing, in any specific country or area? The answer is a complex one.

If genetic testing and abortions/manipulation with the aim of removing homosexuality and homosexual children were made legal, the removal/modification of children with homosexual preconditions would probably not become required by law in any developed country. Some women who have had genetic testing done on their babies may choose abortion or modification, but many others would most likely make no change or not have testing done at all. The Down syndrome test has shown that governments and individuals are willing to let fetuses be aborted if they have a genetic disorder.  Homosexuality is not a disorder, which greatly undercuts the chances of abortion or modification based on sexuality, but does not totally eliminate the possibility. This does not mean a campaign to eradicate homosexuality could not exist in a developed country. Germany was one of the world’s highest educated and most cultured countries when Hitler came to power; with the discrimination that still exists today, one should never say never.

Genocide is probably unlikely in highly developed countries, but there is a stronger possibility that Rixecker’s genocide could happen elsewhere. This would most likely be in a country where homosexuality is crime punishable by death or life imprisonment. Most of those 13 countries are not yet developed enough to have the genetic testing and screening technology and use it on a broad scale. But India (where homosexuality is punishable by life imprisonment) and Pakistan (where it is punishable by death), might. It is not a long jump between murdering people for being gay and preventing gay people from being born.  In light of this, Rixecker’s genocide certainly is, at least, theoretically possible.

When these four “genocides,” are placed in context the picture that forms is one of horrible abuse to a vulnerable group across borders and throughout modern history. During WWII the Nazis set out to remove homosexuals, and other groups, from German society. The conditions that gay men were subjected to were as bad or worse as any other group. They were targeted for destruction, and underwent genocide. Homosexuals are still undergoing genocide in more than 13 countries, where they are either murdered or put in prison for life because of their sexuality. And it is conceivable that in the future, in certain countries or areas, generations of homosexuals could be wiped out through genetic screening, genetic modification, and abortions. Homosexuals are vulnerable and are currently not protected by international law, and this needs to change.

An effective international instrument is needed to protect homosexuals from genocide and other crimes. Gays and lesbians have undergone and still undergo treatment that would be considered genocide if they were one of the groups outlined in the genocide convention. There is intent to destroy, there is killing and there are conditions intended to bring about destruction. The most effective way to recognize past, stop current, and prevent future genocides, is to add sexual groups to the genocide convention alongside “national, ethnical, racial (and) religious group(s)” (Genocide Convention Article II). This can be done without making the convention overbroad. Hopefully, if this can be accomplished, it will serve to create international pressure and eventually result in the repealing of anti-gay laws and genocidal practices. Because gays are such a minority and targeted in so many countries, using force to end genocide is not really an option. But simply by recognizing the plight of homosexuals in international law will create some form of protection and justice, and raise massive amounts of awareness that can hopefully bring about change. But changing international law is a complex process, and the genocide convention must not be made overbroad.

The question of over broadness is where the “psychological genocide” must be applied. As mentioned above, it was not genocide and does not meet the requirements of the genocide convention. It would not meet those requirements even if sexual groups were included in the definition. This must remain so. The 5 criteria in article II of the genocide convention should not be removed, added to or changed. Changing them to recognize things like the psychological war against homosexuality would over broaden the convention and make it much less effective. This is where the line must be drawn. To reiterate, simply adding sexual groups to the first part of article II does not remove any power from the convention through over broadness and it stays true to the convention’s original purpose. It is adding to the 5 criteria of article II that would make it overbroad.

But there still remains one large problem. Many countries in the UN will never agree to adding sexual groups to the genocide convention, especially when 70 outlaw sodomy. Some Islamic countries, like Iran, refuse to even admit that homosexuality exists within their borders  (Daily Mail). This essay attempts to establish what justice dictates should be done in the case of the genocide convention. Adding sexual groups to the convention is just, but it is not practical in today’s world. But sexual groups still remain in limbo in terms of international law; there is no effective treaty which protects their rights As such, for practical purposes, a declaration, and eventually a convention, or possibly an optional protocol to the ICCPR,  must be drawn up to protect the rights of sexual groups and sexual minorities. This should take a similar form to the CEDAW and CERD. It must specifically outlaw discrimination based on sexual preference, declare that homosexuality is not a disease, and require governments to repeal sodomy/homosexuality laws and begin education campaigns to reduce stigma. This will help increase international pressure to end the stigmatization, stereotyping and hatred toward gays and lesbians. It will also help to gradually work toward a modification of the genocide convention that recognizes past, helps to end current, and helps to prevent future genocides.

Unfortunately, even something as simple as a declaration has little chance of entering into force in the UN. There are simply too many countries opposed to homosexuality. Change is possible, but it must be brought about gradually, through education and pressure from governments, NGOs, IGOs and individuals. Groups like Amnesty International and the International Gay and Lesbian Human Rights Commission are already fighting to create pressure for an international document protecting the rights of sexual minorities. Unfortunately, so far they have been unsuccessful. But, to borrow a term from Rixecker, a new “social map” (123) must be created in the world. It is certainly an uphill battle, but it is one that is being and certainly needs to be fought.

In conclusion, it is evident that homosexuals have undergone and still undergo massive discrimination, hatred and even genocide. Their treatment in WWII was genocidal, their treatment in countries where their sexuality is outlawed on pain of death or life imprisonment is genocide, and it is possible that a genetic genocide could be visited upon them in the future. To serve justice and provide protection, sexual groups must be included alongside the other groups in article II of the genocide convention. This will help to recognize past, end current, and prevent future genocides against gay men and women. This change can be done without making the convention over broad or ineffective, and the psychological non-genocide can be used a test to draw the line. Changing the genocide convention will be difficult and probably take many years, and other steps will have to come before any modification. But change is possible, and for justice and human dignity to be served, change must come.

Works Cited

Amnesty International USA. “LGBT Status Around the World.” 2009. Amnesty International USA. 13

January 2009 <http://www.amnestyusa.org/lgbt-human-rights/country-information/page.do?id=1106576&gt;.

Bennetto, Jason. “Holocaust: Gay Activits Press for German Apology.” 1 November 1997.

FindArticles.com. 13 January 2009 <http://findarticles.com/p/articles/mi_qn4158/is_/ai_n14142669&gt;.

Bergen, Doris L. War and Genocide: A Concise History of the Holocaust. Lanham, Maryland:

Rowman & Littlefield Publishers, Inc., 2003.

Bull, Chris. “Memories of Nazi Persecution.” Advocate 879 (2002): 14-14.

Copestake, Jennifer. “Gays flee Iraq as Shia death squads find a new target.” The Observer 6 August

2006: http://www.guardian.co.uk/world/2006/aug/06/gayrights.iraq.

Dadrian, Vahakn N. “Children as Victims of Genocide; The Armenian Case.” Journal of Genocide

Research (2003): 421-438.

Daily Mail. Mail Online. 25 September 2007. 30 March 2009

<http://www.dailymail.co.uk/news/article-483746/We-dont-gays-Iran-Iranian-president-tells-Ivy-League-audience.html&gt;.

Eunice Kennedy Shriver National Institute of Child Health and Human Development. Facts About

Down Syndrome. 15 August 2008. 10 March 2009 <http://www.nichd.nih.gov/publications/pubs/downsyndrome.cfm#TheOccurrence&gt;.

GayLawNet. Laws. 2008. 13 January 2009 <http://www.gaylawnet.com/laws/laws.htm&gt;.

Inernational Gay and Lesbian Human Rights Commission. Home. 2009. 13 January 2009

<http://www.iglhrc.org/site/iglhrc/&gt;.

Ireland, Doug. “Youths Slain in Anti-Gay Fatwa.” Gay City News 5 September 2006:

http://gaycitynews.com/site/index.cfm?newsid=17008362&BRD=2729&PAG=461&dept_id=568864&rfi=8.

Michel Prum, Benedicte Deschamps, Marie-Claude Barbier. Racial, Ethnic and Homophobic Violence:

Killing in the Name of Otherness. Oxon, OX: Routledge-Cavendish, 2007.

Percy, William A. “Humbuldt University of Berlin.” 22 June 2006. Homosexuality and the Holocaust.

13 January 2009 <http://www2.hu-berlin.de/sexology/BIB/Homosexuality_and_the_Holocaust.htm&gt;.

Rixecker, Stefanie S. “Genetic Engineering and Queer Biotechnology: The Eugenics of the Twenty-

First Century?” Journal of Genocide Research (2002): 109-126.

Robert J. Cramer, Frank D. Golom, Charles T. LoPresto, Salene M. Kirkley. “Weighing the Evidence:

Empirical Assessment and Ethical Implications of Conversion Therapy.” Ethics and Behaviour 18.1 (2008): 93-114.

Romesburg, Don. “The politics of the gay gene.” Advocate (2005): 7-7.

SodomyLaws.org. Sodomy Laws in the United States. 24 November 2007. 30 March 2009

<http://www.sodomylaws.org/&gt;.

Stonewall UK. “Timeline of lesbian and gay history.” 2007. Stonewall. 23 January 2009

<http://www.stonewall.org.uk/information_bank/history__lesbian__gay/89.asp&gt;.

United Nations. “Convention on the Prevention and Punishment of the Crime of Genocide.” United

Nations, 9 December 1948.

United Nations General Assembly. “Universal Declaration of Human Rights.” New York: United

Nations, 10 December 1948.

United States Holocaust Memorial Museum. “Lesbians and the Third Reich.” 7 October 2008. United

States Holocaust Memorial Museum. 13 January 2009 <http://www.ushmm.org/wlc/article.php?lang=en&ModuleId=10005478&gt;.

United States Holocaust Memorial. “Nazi Persecution of Homosexuals 1933-1945.” 2009. United

States Holocaust Memorial. 13 January 2009 <http://www.ushmm.org/museum/exhibit/online/hsx/&gt;.

Vilanch, Bruce. “Tolerance and Tennessee.” Advocate 939 (2005): 72-72.


[1] Lesbian women received different treatment. They were often ignored because they could be forced to reproduce and were not usually considered a threat. However, some were put in camps and others were forced to work in brothels (Bergen 187).

[2] This study, performed by Dean Hamer, has been disputed by a later study. However, this second study used a smaller test group made up of a different field of subjects. Hamer has stood by his research, and has conducted a second study which further confirmed the link between Xq28 and homosexuality, but only in men.

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Balance in the Charter

Balance in the Charter

St. Thomas University

10 March 2008

The Charter of Rights and Freedoms is a document meant to protect individual liberties from government and a tyranny of the majority. It was created with teeth, unlike the bill of rights that came before it. The government struck a strong balance between the judiciary and legislators, one which ensured that liberties and democracy were both well protected. Historical evidence, a democratic dialogue, and the fact that the balance was created democratically show how effective that balance is.

In its essence, the Charter is a liberal document. Its purpose is to limit government power in order to protect the rights and freedoms of Canadians. It explicitly outlines prohibited grounds of discrimination and what rights people are entitled to. It allows the courts to strike down any laws that do not align with those rights.

The charter also protects against a tyranny of the majority. Canada is a liberal democracy, which means it is democracy with some limits. The election of Hitler in Germany was democratic, and the majority of German people went along with Nazism. The genocide against the Jews was, at least in part, due to the tyranny of the majority against a minority. The enshrinement of rights is necessary in a society to ensure the majority does not bring harm to a minority, like what happened in Germany or even what happened to Japanese Canadians who were put in internment camps during WWII.

As noble as the charter is, it is useless without any teeth. The Canadian Bill of Rights is a good example of an impotent document intended to protect rights. When it was enacted in 1960 it gave the courts the right to strike down laws, but it was not enshrined in the constitution (meaning the next government, or even the same government, could change it like any other law). As such, courts were unwilling to use the power it granted them to strike down laws that violated people’s freedoms. When they did strike down laws, it was almost always for jurisdictional reasons. The Supreme Court’s striking down of the Alberta Press Bill is an example of this. The Court determined that freedom of the press was crucial to a democracy, and that only the federal government could enact a law restricting something so important. This means that even in a case as important as the Alberta Press Bill, the Supreme Court was unwilling to use the Bill of Rights to strike down legislation. This was seen again in Switzman vs. Elbling, or the padlock case. The court was often completely unwilling to act when a case did not deal with division of powers, such as when Tomey Homma, a Japanese Canadian, was denied the vote because the Privy Council ruled that, “race… was simply a category the province was entitled to adopt in determining who should have the ‘privilege’ of the franchise,” (13).

So human rights must be enshrined in the constitution, and they must have a body to enforce them. The court is the only body capable of giving rights this protection. The question then moves to how the Charter balances the court’s power with that of the legislators. There are several reasons to support that balance.

The court does not have a final say. It is part of an ongoing dialogue with legislators. Laws the court invalidates can be reframed so that they fall under section 1 of the Charter, that, “these rights are subject only to such reasonable limits as can be demonstrably justified in a free and democratic society.” This is often used, as Sharpe and Roach say, “there is strong evidence that legislatures have frequently enacted new legislation after the courts have invalidated legislation under the charter,” (38) and, “the Supreme Court appears to accept the idea that judicial review under the Charter is part of a dialogue between courts and legislatures.” (38) The notwithstanding clause of section 33 can also be invoked to create laws that are not subject to the guarantees of the charter on a renewable five year term. This means that legislators can easily overrule the courts decisions, but if they do so in a way that invokes the wrath of voters, they may have to reconsider renewing the clause. This clause was a compromise Trudeau agreed to in order to get more provinces to agree to the Charter, and he hoped it would be removed quickly. It has not, and although it is rarely used, it does create what many people see as an unnecessary obstacle to human rights. For the sake of rights it should be removed, the only real purpose it serves is to help satisfy critics of the charter.

It must be remembered that judges did not ask for the power of judicial review. Some people say judicial review is undemocratic because judges are unelected and appointed for life. However, the power of judicial review was freely given to judges by the elected representatives of the people. This means the balance between the court and legislators is one that was democratically created.

Courts are also needed to determine what limits rights should have. Freedom of expression is an important right, but it does not entitle someone to yell, “fire,” in a movie theatre. Rights are only meant to stop before they bring harm to others or to society as a whole. People are free to gather in peaceful assembly in Canada, but not free to gather and riot or to promote racism or sedition. It is obviously a bad idea to give legislators the power to determine where the limits of rights are, so the courts are needed to determine what limits are justifiable under section 1 of the Charter.

The Supreme Court also gives a flexible interpretation in regard to its own powers. As Sharpe and Roach state, courts have, “demonstrated a marked tendency to defer to legislative judgement and apply a relatively deferential standard of review in cases involving broad issues of social and economic policy,” (76). As such, those cases which seem to be more about morality then legality are often left up to legislators, which is good for the democratic process and strengthens the overall balance with the Court.

The court also limits itself when applying the Oakes test, a test designed to determine whether an infringement on a charter right is justifiable under section 1. The objective of the limit must be sufficiently important, there must be a rational connection between limit and objective, it must minimally impair the right, and there has to be an overall balance, “between the effects of the measure which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ‘sufficient importance,'” (73). This test is no doubt a strong one, as it allows for a justification for the limits on rights, but only those which are absolutely necessary and which result in minimal impairment. It is important that the Supreme Court does not use this test overly strictly, especially the minimal impairment requirement. It will not strike down a law, “simply because it is possible to conceive of another measure that might be less intrusive on a protected freedom,” (75). Once again, the court is willing to restrict its own powers in favour of democratic institutions, strengthening the balance between itself and the legislators.

The balance the charter set up has also led to a “living tree,” doctrine.  This means that the charter is not restricted by the intent of the people who made it. It is allowed to grow as the nation grows, with the courts interpreting its rights in their phrasing, their context in the charter, their context historically, and their context in Canada. The Charter’s framers made its wording vague, and they did so on purpose. Their intention was always that the charter should grow and change.  Without the power of the courts to create this living tree doctrine, homosexuals would not be allowed to marry because that right is not mentioned in the charter. Also, without the living tree doctrine, the Newfoundland government may have been forced to increase the wages of nurse’s during an economic crisis. That wage increase was the nurse’s right as outlined in the charter, but the refusal to raise their wages was considered a justifiable limit under section one of the Charter because of the province’s money troubles. Such a liberal and careful approach to human rights is absolutely good for the balance of powers between legislators and the courts, and it also strengthens democracy.

The Courts give a voice to minorities and other groups of people that are underrepresented by decision makers. Prisoners do not often have a voice in Parliament; few politicians would ever take up their cause. Prisoners with sentences greater than two years used to have restricted voting rights, until the Supreme Court determined that those restrictions are illegal in Sauvé V. Canada. Homosexuality is an issue too controversial for many politicians; gays’ right to be married would probably be non-existent today without the Court’s interpretation of Charter rights. This is exactly what Trudeau wanted when he repatriated the constitution. The charter helps bring issues forward that partisan politicians would rather ignore.

There is even more historical evidence to support the Charter and the powers it gives to courts. Tawny Meiorin was discriminated against because of her sex and lost her job as a firefighter. The Supreme Court reinstated her. The Supreme Court also helped encourage rape victims to come forward by enacting the rape shield law. That law made it more difficult for a defendant to cross examine victims about their sexual past.

The arguments against the charter and the power it gives the courts are weak. Schmeiser outlines several of these arguments in his Civil Liberalism in Canada article. He claims that giving courts the power to strike down legislation will allow politicians to pass the buck on controversial issues that would be better, “left to enter the arena of public and political criticism,” (26). This is true to an extent. Politicians often try to avoid controversial issues that can cost them votes. That tactic is one of the reasons why Mackenzie King was so successful. However, politicians have a long history of avoiding controversial issues, one which goes far past 1982.  This means there should be a body that can decide these issues on a legal basis without worrying about partisan politics. Politicians will often avoid an issue that could cost votes, court or no court. This is where the so-called undemocratic nature of the court proves its usefulness, judges don’t have to worry about partisan politics when they are appointed for life.

Schmeiser also claims the courts could lose their prestige because they will be determining cases outside of their legal expertise. Many cases deal with ambiguous social and moral questions that may make it difficult for judges to remain impartial. However, politicians do not necessarily have any more expertise on these subjects then judges do, and they are almost certainly less impartial. Also, as mentioned earlier in this essay, courts are frequently willing to defer to the legislators these types of questions. Supreme Court judges put a lot of effort in determining these moral questions, taking into account the context in which a right is given in the charter, the social and political situation at the time, the overall historical context (even going so far as to quote John Locke and other political philosophers) and other factors.

Schmeiser is also afraid that courts may simply judge poorly. This is one of his weakest arguments. He cites cases where the Supreme Court of the United States, “struck down minimum wage legislation for women and children,” (27), and blocked a statute that restricted working hours for bakery employees. These cases took place over a century ago and in a different country. The courts have not shown the same tendency to make these mistakes in recent years, and have judged wisely in cases where they have both restricted rights (such as the nurses in Newfoundland) and helped the cause of rights by striking down laws (giving more voting rights to prisoners). The Supreme Court of the United States even overturned the cases Schmeiser cited.

Schmeiser also claims courts will be partisan, that, “desired policies can be (and have been) secured by selecting judges with appropriate personal views,” (29). This is a legitimate concern. However, judges are still legal experts with years of experience that are called to be impartial, even if no one is policing them. Politicians may appoint judges with similar political views, and those judges are appointed for life. However, those politicians were elected because of their political views, so these appointments are still part of the democratic process and reflect the wishes of the people during a certain time period. In the United States there is a vigorous screening and public hearing process for Supreme Court Appointees and Canada may benefit from such a process. However, it is still difficult to argue against what is essentially the most democratic aspect of judicial review.

Finally, Schmeiser suggests that putting courts in charge of rights, “unduly fosters litigation, much of which is frivolous as well as expensive,” (29). Again, this may be true, but it is a misleading argument. Canadians live in a system where it is considered better to let ten guilty men go then jail one innocent man. There may be some frivolous litigation, but that litigation may be necessary in order to address important cases, and must be outside the norm. Sharpe and Roach address this criticism well when they say, “the very notion of a right is that it must be given priority over other claims and not made subject to such utilitarian concerns such as cost and administrative inconvenience,” (82). Those authors are referring to cost in relation to the government using it as an excuse to limit rights, but it also applies in this case. There is nothing wrong with streamlining the process of human rights and reducing cost as much as possible, and a lot of frivolous cases are thrown out before cost really becomes that much of an issue. However the charter is far too important to throw the baby out with the bathwater, especially when the bathwater in this case is of fairly minor importance.

A great balance has been struck between the Judiciary and the legislators in the Canadian Charter of Rights and Freedoms. It was created democratically, and it uses the courts in the best possible way enshrine rights and enhance democracy. The Charter gives courts the power to strike down laws that violate rights, but does not really give them the final say, encouraging a democratic dialogue with legislators. The balance takes power out of the hands of partisan politicians who will oftentimes ignore important issues that are too controversial. The balance also allows Courts to interpret their own powers liberally, giving certain parts of it back to legislators. The balance works in theory, has worked well historically, and stands up well to its criticisms.

Bibliography

Schmeiser, D. (1964). Civil Liberties in Canada. Oxford: Oxford University Press.

Sharpe, R. J. and Kent Roach (2005). The Charter of Rights and Freedoms . Toronto: Irwin Law.

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Female Genital Mutilation, Relativism and Recommendations

To End Cutting: FGM and Relativism in North-East Africa

St. Thomas University

8 December 2008

Female Genital Mutilation (FGM) is one of the most important issues in the argument over cultural relativism. It is a brutal, unnecessary practice used to sexually discriminate against women. Approximately 115 to 130 million (US State Department 4) women have undergone the procedure worldwide, with another 2 million subjected to it each year. It is a practice that violates several human rights and is an affront to human dignity. There is almost universal international, religious, regional and local consensus against FGM. It can also be an important aspect of the path leading to the enslavement of woman, and should be considered a practice similar to slavery. It must be stopped. However, it is a deeply ingrained cultural practice. There are powerful relativist arguments for it, but these can be proven false in the light of consensus, simple reasoning and scientific and medical fact. These arguments must be shown to be false, but the practice must be ended carefully, with a multilateral and educational approach that completely avoids any trace of paternalism.

FGM is exactly what it sounds like, the mutilation, usually by cutting, of the female genitals. But there are many types of FGM, some which do less damage than others. The practice is broken into four categories, one of which does not always seem to violate human rights, two which clearly do, and one which is too broad to classify. The prevalence of all four types varies. According to the United Nations Population Fund (UNFPA) FAQ on FGM, the practice, “is common in parts of Africa, Asia and in some Arab Countries.” It is very rare in most Arab countries, but is according to the US State department, is common in, “Egypt, the Republic of Yemen. … Oman. … (and) Saudi Arabia,” (7). FGM is also practiced in Indonesia. This essay will concentrate on FGM among Nubian and Arab peoples in Egypt and Sudan. However, it should be noted that most of the information in this essay (aside from specific statistics) applies to most cultural situations in which FGM is practiced.

The 2004 US State Department report on the Prevalence of the practice of Female Genital Mutilation classifies the types of FGM as follows. There is general international consensus on these definitions.

Type I, or clitoridectomy is, “removal of the clitoral hood, with or without removal of all or part of the clitoris,” (5). This is the form of FGM most similar to male circumcision, except that total or partial removal of the clitoris is common. This means type I actually damages or removes a sexual organ, whereas male circumcision does not. When only the clitoral hood is removed, and when it is done in sanitary conditions and by trained professionals, Type I has very little risk and can possibly be argued for. This essay will also argue that this type of FGM should be divided into another two categories. However, the medicalization of the practice has been condemned by the United Nations and World Health Organization, as is shown in this quote from the WHO website, “the “medicalization’ of FGM – which is willful damage to healthy organs for non-therapeutic reasons – is unethical and has been consistently condemned by WHO.” (WHO, FGM – Policy Guidelines).

Type II, called excision, is removal, “of the clitoris together with part of the labia minora (the inner vaginal lips),” (US State Department 5). Again, this has no medical benefits. It is the most common type of FGM, making up to 80% of cases in Africa (Mohammed A Tag-Eldin 2). It is extremely dangerous to the health of the girls and women on which it is performed, and is most often performed in unsanitary conditions and with unsanitary tools.

Type III, called infibulation, is removal, “of part or all of the external genitalia (clitoris, labia minora and labia majora) and stitching or narrowing of the vaginal opening, leaving a very small opening, … to allow for the flow of urine and menstrual blood,” (US State Department 5). This is the most dangerous form of FGM. Not only is it the most invasive, but the opening left is only about the size of the thickest part of a toothpick. Urine and menstrual fluid escape in drips, leading to, “chronic infections of the bladder and vagina,” (US State Department 6). This is extremely hazardous to the physical, mental and sexual health of women, and has it has the weakest supporting arguments.

The fourth type of FGM is unclassified. It varies greatly; from a small prick of the clitoris, which is easily defensible and not (necessarily) much of a health hazard, to cauterization, scraping and cutting, and even using corrosive or acidic substances to cause bleeding (US State Department 5). The fourth category is essentially all types of FGM that do not fall under the other three categories. As such, each form of FGM under this category has different health issues, and each must be justified or discredited on an individual basis.

It is important to remember that there are four categories of FGM, but type IV is very broad and type I is somewhat broad. Some forms of FGM involve no mutilation whatsoever, and as such do not need to be condemned, so long as they are done in a sterile environment and without discrimination. These cases (which are somewhat rare) can be legitimate coming of age ceremonies, and should not be called FGM, as there is no mutilation. But most forms of FGM are brutal, risky and discriminatory practices, which may play an important part in forcing women into a form of domestic slavery.

Female Genital Mutilation is often an extremely dangerous procedure which irreversibly alters a woman’s reproductive organs. The procedure comes with serious health risks both immediately and over the long term. The rate of complication varies widely, anywhere from “13-69 %,” (Mohammed A Tag-Eldin 272) according to a WHO report. Complication rates depend on  sanitation, the age of the person on which FGM is being done, the experience of the practitioner,  which type of FGM is being carried out, the tools used and many other factors (US State Department 5). The US State Department report also points out that, “when medical complications occur, they are not generally understood as having resulted from the practice of FGM,” (16). This ignorance of the consequences helps to perpetuate the practice and highlights the importance of education in eradicating FGM.

The US state department lists the following problems as being immediately associated with FGM. The first is, “bleeding,” (6), which can become severe and often lead to death. This is especially dangerous if blood vessels in the clitoris are ruptured. There is also a risk of, “post-operative shock, damage to other organs resulting from lack of surgical expertise of the person performing the procedure and the violence of the resistance of the patient when anesthesia is not used,” (6). FGM is often performed by old women, barbers or sometimes trained midwives. They are frequently inexperienced, and generally have very little medical expertise. There is also a high risk of, “infections, including tetanus and septicemia, because of the use of unsterilized or poorly disinfected equipment; urine retention caused by swelling and inflammation,” (US State Department 6). It must be noted that FGM is often performed on many girls at once and with the same instruments for each girl. This leads the possible spread of STI’s like HIV and hepatitis B and C (WHO 272). The use of anesthesia is rare. Without anesthesia, FGM is very painful. In Egypt, the surgery is most often performed outside of hospitals. However, medicalization is becoming common in Egypt, Nigeria and other countries (Mohammed A Tag-Eldin 4). Violent resistance, screaming, and thrashing in an attempt to get away, are extremely common. Girls are almost always held down by several people (Abusharaf 43). One case study puts it this way, “the girl started squirming and had an expression of fear on her face… she began to twist to free herself from the women’s grasp. … The girl was screaming and bleeding,” (Abusharaf 43).

On top of the complications of the procedure itself, parts of the ceremony frequently lead to health problems. Midwives may use charcoal to give them a better grip. After the cutting herbs, eggs or substances like animal stool may be applied to the vagina (US State Department 5). These lead to a much higher risk of infection. There are also procedures under type 4 FGM, such as placing corrosive substances in, or the cauterization of, the vagina. These, by their very nature, lead to a high risk of infection.

FGM is not only dangerous immediately; there are many long term health consequences. These include, “chronic infections of the bladder and vagina,” (6). These are extremely common with type III FGM, where urine and menstrual fluid can only escape in drips. In fact, “the build up inside the abdomen and fluid retention often cause infections and inflammation that can lead to infertility,” (6). Other problems include, but are not limited to, “extremely painful menstruation; excessive scar tissue at the site of the operation; and formation of cysts on the stitch line,” (6). FGM also increases the risk of STIs during the procedure, if the same instruments are used on several girls. Later in life sex also comes with an increased risk of transmission, as circumcised vaginas can tear during sex.

On top of these problems, pregnancy and sex are often made extremely painful and more risky by FGM. With type III, a woman will re-live the experience of FGM throughout her life. A midwife will be needed to cut her back open on her wedding night and re-stitch her afterward (6). The hole is much too small for a baby’s head to fit through, and a midwife is needed to cut the woman open when she is giving birth, and again, re-stitch her afterward. FGM leads to an increased risk of death, for both the baby and mother, during pregnancy. If the woman is not cut back open, death for her and the baby is almost a certainty.

Not all problems are physical; psychological problems are common throughout the mutilated woman’s life. There have not been many scientific studies conducted, but primary documents report, “nightmares, depression, shock, passivity, (and) feelings of betrayal,” (6). Sometimes these girls do not know about FGM. They are led by their mothers to where the procedure will be performed, and then held down and forced to endure it. Even if they do know what is in store, and are willing to go through with it, they are still too young to legally consent.

The rational for FGM varies between regions and cultures, even within countries and within villages. However, the practice shares common characteristics cross-culturally, and there are several general reasons behind it.

The basic roots of FGM are not fully known. It is primarily practiced in Africa today, but is also done in parts of the Middle East (primarily Yemen and Oman) and Asia (primarily Indonesia). It was also carried out in Europe and North America, but not for initiation purposes. It was mostly done to cure women of ‘ailments,’ such as masturbation, lesbianism, and being over- or under-sexed. This was carried out, “as recent(ly) as the 1950s,” (UNFPA), but is no longer practiced.

Probably the most prevalent reason behind FGM in Africa is the idea of demasculating women. The clitoris is seen as masculine, something that could rival a man’s penis during intercourse. It has to be removed in order to strengthen gender identity. This also applies to men, whose foreskin may be considered feminine, and as such needs to be removed to make a man more masculine (Abusharaf 36).

One of the least understood reasons for FGM is religion. In Egypt, religion is the main justification for FGM, with 33.4% of those who defend the practice citing this as their reason (Mohammed A Tag-Eldin 273). However, “there is no doctrinal basis for this practice in either the Islamic and Christian faiths,” (Mohammed A Tag-Eldin 270-272), with the exception of a brief mention in the non-divinely inspired Islamic Hadith.

There is also a belief that FGM leads to better health, preventing infections and infertility. 18.9% of proponents of FGM in Egypt cited this as their main justification (Mohammed A Tag-Eldin 272). This is of course untrue. FGM leads to many health problems throughout a woman’s entire life, from immediate bleeding, to long lasting psychological effects, to frequent bladder infections.

17.9% of proponents of FGM cite other cultural and social reasons for carrying out the practice(Mohammed A Tag-Eldin 272). FGM is a coming of age ceremony which prepares women for marriage (and they frequently will not be able to find a husband without having FGM performed). It also proves that the woman will stick to the community despite pain and suffering, something that was very important in warrior cultures (UNFPA FAQ on FGM). Desexualization is also important, as FGM is seen as a way of controlling women from cheating on their husbands (Abusharaf 38). It also keeps them pure for marriage and prevents promiscuity, which is often believed to lead to bad health (UNFPA). This places women into a very specific gender role. It is the last step in initiating them into their community and into a role as mother and wife (and oftentimes, nothing else). Finally, FGM is defended simply because many Arabic and Nubian men prefer circumcised vaginas to uncircumcised vaginas. This supposedly makes sex more enjoyable for men and, in that culture, circumcised vaginas considered more sexually attractive then uncircumcised vaginas (Abusharaf 33).

There is an overwhelming international consensus against FGM in human rights documents. In terms of UN documents, FGM violates rights as outlined in the Universal Declaration of Human Rights (UDHR), both the Covenant on Economic, Social and Cultural Rights (CESCR) and the Covenant on Civil and Political Rights (CCPR), the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), The Declaration on the Elimination of Violence Against Women (DEVAW), and may or may not violate the 1926 Slavery convention and its supplementary Convention on the Abolition of Slavery. There is also a call from UNICEF to end FGM by 2010 (UNICEF), and by the UN to end it by 2015 in accordance with its Millennium Development Goals (UNDP). FGM also violates regional and religious documents, such as the African Charter on Human and Peoples’ Rights (ACHPR), its protocol on the Rights of Women in Africa, the African Charter on the Rights and Welfare of the Child, and the Cairo Declaration on Human Rights in Islam.

Under the UDHR, FGM violates the right to, “freedom and equality,” (article 1), as it restricts freedom and is a form of sex discrimination, which also violates article 2. It violates the right to, “life liberty and security of the person,” (article 3), because of its physical and psychological complications. In countries where FGM is illegal, but the law is not enforced, women and girls who undergo the procedure are not enjoying equal protection of the law, a violation of Article 7. If they receive no effective remedy, article 8 is also violated. Girls often have their legs bound for up to forty days after the procedure, to encourage the growth of scar tissue. Without informed consent (which a child cannot give), this is a form of arbitrary detention and a violation of article 9. The risk of sterilization destroys a girl’s right to have a family under article 16 (2). FGM may also go hand in hand with arranged marriages, which, when entered without consent, is a violation of article 16 (1). FGM, by entrenching certain gender roles (specifically being the last step in forcing a woman to exist only as a wife and mother), may violate a woman’s right to work under article 23. This is also related to article 4, “No one shall be held in slavery or servitude,” as FGM can be a precursor to a form of domestic slavery if the woman is not free to pursue roles aside from that of wife and mother. In a society where the worst types of FGM are very prevalent, women may not be able to enjoy their right to a social order where the rights of the UDHR can be enjoyed. Even article 19, which outlines the freedom of expression, can be violated by FGM due to the social importance of the practice and the outcast status uncircumcised woman may have to face.

Many of the rights violated in other agreements are very similar to those violated in the UDHR, so those rights will not be discussed for the sake of brevity. The African Charter on Human and Peoples’ Rights, its protocol on the Rights of Women in Africa, and the African Charter on the Rights and Welfare of the Child run fairly parallel to the UN’s protections. However, it should be kept in mind that they are a region specific guarantee of human rights, rights which FGM violates. These include rights to equality, the right to freedom from exploitation, the right to liberty, and the right to “the best attainable state of physical and mental health,” (ACHPR article 16). All of these rights are violated by FGM.  The ACHPR also specifically outlaws FGM in article 5, stating that states parties must work toward, “prohibition, through legislative measures backed by sanctions, of all forms of female genital mutilation, scarification, medicalization and para-medicalization of female genital mutilation and all other practices in order to eradicate them.” The ACHPR also has very strong legislation on discrimination against women. These documents are crucial and very strong evidence in the fight against relativist-supported FGM.

FGM violates a woman’s right to “self-determination,” (article 1) in the CCPR. It is a deeply ingrained practice, and one to which girls cannot (and often do not have the chance to) consent. It is both a symptom of and cause for discrimination, and it is often required for a woman to become a full member of her social community. When FGM is a precursor to slavery, it violates almost every article in the convention, as it destroys any chance of equality, power, or access to public life within society.

The Covenant on Economic, Social and Cultural rights is very similar to the UDHR and will not be discussed in depth. However, it should be noted that the covenant creates obligations on the states parties that ratify it. As such, those states are in violation of the covenant when they do not take action to stop practices that are a huge affront to human dignity, such as FGM.

FGM leads to several violations under the Convention on the Rights of the Child. Most forms of FGM are clearly not in the best interest of the child, a violation of article 3 (1). When the government does not ensure that these interests are being looked after, article 3 (2) is also violated. Article 24 states, “States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health” (CRC). Clearly this is violated by the immediate and long term problems of FGM. Several of article 24’s subsections are also violated. Article 37 (1) requires that, “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.” (CRC), and requires that a child’s right to liberty be protected (37 [2]); both of those rights are violated by most forms of FGM.

FGM also violates several articles of the CEDAW. It is a discriminatory practice which makes a distinction based on sex, violating Article 2. Even in cultures where men are also circumcised, it is extremely rare for their circumcision to be anywhere near as brutal as that of FGM.  Article 3 states,

States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures … to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men

Rarely do states take effective measures to combat FGM. When these measures are not taken, states which have ratified the CEDAW (and other treaties) are not fulfilling their obligations. Again, when FGM is a precursor to a form of economic slavery, almost every article in the convention is violated.

The Declaration on the Elimination of Violence Against Women specifically names FGM as a violation of rights. Article 2(a) says violence is any, “physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation,” (DEVAW). FGM prevents women from enjoying their universal human rights as outlined in article 3, and article 4 asks states to stop violence against women. This may not have much in the way of teeth, but it is still an important document which better reveals the international consensus against FGM.

It is extremely important to look at religious agreements about FGM, since FGM is (mistakenly) believed to be rooted in religion. The Cairo Declaration on Human Rights in Islam has flaws. It does not guarantee freedom of religion, instead talking about, “the true religion,” (article 1). It also gives protection from state interference in marriage, but not on the basis of religion, and it could be interpreted as suggesting that men are superior to women. However, despite its flaws, the Cairo declaration is an effective document for fighting against relativists supporting FGM. It still outlines many rights which FGM violates. It says the, “right to life is guaranteed to every human being. It is the duty of individuals, societies and states to safeguard this right against any violation,” (article 2), and that, “safety from bodily harm is a guaranteed right,” (article 2). Article 6 establishes that, “woman is equal to man in human dignity,” a dignity which can easily be destroyed by FGM. Article 11 says, “Human beings are born free, and no one has the right to enslave, humiliate, oppress or exploit them.” FGM can be a precursor to slavery, a form of forced detention, and can certainly be humiliating. FGM can even violate article 17, the right to live in a “clean environment,” which is destroyed by the constant infections associated with type III, and complications from the other types.

The Banjul Declaration (not to be confused with the ACHPR) was written in Gambia by, “the participants at the Symposium for Religious Leaders and Medical Personnel on FGM as a Form of Violence,” (Banjul Declaration) in 1998. It specifically declares that FGM must be stopped. It also condemns, “the misuse of religious argument to perpetuate FGM and other forms of violence,” (Banjul Declaration), asks for religious leaders to help stop the practice, and asks for legislation to stop FGM and punish those perpetuating it.

Although FGM is a brutal practice which violates human rights, it is very difficult to argue that it is a form of slavery. Kevin Bales, the leading expert on slavery in the world, defines slavery as the, “state marked by the loss of free will, in which a person is forced through violence or the threat of violence to give up the ability to sell freely his or her own labor power,” (Bales, 57). He lists three characteristics of slavery, “loss of free will, the appropriation of labor power, and the use or threat of violence,” (Bales, 57). FGM does not meet all three of Bales’ requirements. It does include the loss of free will, and is in itself the use of violence, but there is no appropriation of labour power. However, FGM is often the final step in placing a girl into a very specific gender role in her society. FGM can desexualize her. It can take her from being a self-determined human being, and make her a wife and mother, nothing else. In this case, the woman is put into a form of domestic labour where she has no ability or choice to move out of the household and pursue a meaningful life for herself. Generally women go into this willingly, but it cannot be ignored that the traumatic and psychological effects of FGM, and the discriminatory environment it is conducted within, may have an effect on her decision. By looking at it in this light, extreme forms of FGM may be the violent control that leads to a form of slavery. This may be similar to a situation where women are forced into prostitution and, after being physically and psychologically abused, become dependent on their pimps and do not try to escape. Girls often do not consent to FGM, and cannot give consent under international law anyway. But they may become more willing to consent to a life of domestic servitude to their husband and community after undergoing FGM.

The United Nations Slavery Convention, which was adopted in 1926, calls slavery, “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised,” (article 1-1). This is a much broader definition then what Bales gives, and it is further augmented by the Supplementary Convention on the Abolition of Slavery. This convention has an interesting section that relates to FGM. Article 5 states, “the act of mutilating, branding or otherwise marking a slave or a person of servile status in order to indicate his status … shall be a criminal offence under the laws of the States Parties to this Convention.” FGM is certainly mutilation for the sake of identifying a status. This treaty seems to make FGM illegal; however, FGM still does not quite fit the definition of slavery under either treaty. FGM is a slavery-like practice, which may be the violent control of a woman that leads to the loss of labour power. This is supported by the UN fact sheet on Contemporary Forms of Slavery. It says that Benjamin Whitaker, a UN researcher, called it a “slavery-like practice,” (UN Fact Sheet No. 14, Special Rapporteurs), in his 1982 report. The Slavery Convention should be updated and made more specific so that it can effectively combat slavery without being too broad. It should use Bales’ definition of slavery and his three attributes, as they are logical and he is the foremost expert in that field. Unfortunately for the fight against FGM, the practice will not fit directly into these definitions. However, it can still be effectively fought. Relativist arguments still stand in the way of that fight, but they can be beaten.

There is a very crucial point in laying out this background behind FGM. The breakdown of the four types and the outline of the physical and mental health risks objectively show that FGM is a brutal practice. The discussion of the roots of FGM reveals that many, maybe even most, people who practice FGM do not really know its roots. They either do not fully understand the cultural reasons for it, or they live in a culture where it is now totally unnecessary (and it is true that a violation of human rights like FGM is never necessary). The point in outlining the human rights documents is to show that there is massive international, national, regional and religious consensus against FGM.  The point in talking about slavery is to reveal the culture of discrimination FGM often exists in, and show that it can be a precursor to slavery. The point of the whole discussion is this. FGM is an affront to human dignity. It removes that right to human dignity, the fundamental and universal right from which all others flow. It must be stopped, as it is a symptom and a cause of discrimination. Women must be empowered to eliminate this culture of discrimination, and this cannot happen when they do not even have the security of their own person. Bringing these facts to light sucks most of the strength out of relativist arguments. The rest of this essay is dedicated to dissecting those relativist and cultural arguments in favour of FGM, and making recommendations as to how the practice can be combated.

Diana Ayton-Senker defines cultural relativism in a United Nations Background note. She says, “Cultural relativism is the assertion that human values, far from being universal, vary a great deal according to different cultural perspectives,”  (Ayton-Shenker). FGM is one of the most important debates in the relativist/universalist argument today because it is both so culturally ingrained and so vehemently opposed internationally. However, despite its importance in this debate, almost all of the arguments for the practice are extremely weak. They emphasize supposedly cultural values that have little grounding in history, and that are extremely discriminatory. They can be refuted, in the light of international consensus, with scientific fact and reasonable thinking. However, they must not be refuted in a paternalistic way, and refuting them is not enough. Legal methods, education campaigns, and international and national support must be used to combat FGM. These will be discussed later in this essay. The arguments presented here are primarily from Nubian and Arab culture in Egypt and neighboring Sudan, but they are easily transferrable to other parts of the world.

The weakest argument in favour of FGM is that it makes woman cleaner and prevents disease and infections. This makes up the rational for FGM in 18.9% of cases in Egypt (Mohammed A Tag-Eldin 4). As the earlier parts of this essay outline, this is totally untrue. FGM has a very high risk of infection, and creates health problems throughout a woman’s life. However, this fact is often not recognized, as infections and problems that happen later in life, such as severe bladder infections, are not realized to be associated with FGM (US State Department, 16). Tied in with this argument is the idea that FGM keeps women healthy during adolescence through a, “curtailment of sexual energy,” (Female Circumcision 35). The idea is that too much sexual energy will, “drain her health, make her weak and skinny,” (35). Again, this has no basis in fact. Promiscuous sex can of course lead to sexually transmitted diseases, but FGM is not an effective way to combat this problem.  According to the UNFPA FAQ on FGM, “due to damage to the female sexual organs, sexual intercourse can result in lacerations of tissues, which greatly increases risk of transmission, (of STIs)” (UNFPA). FGM also creates a risk for the transmission of STIs when it is carried out, as the same instruments are often used on a number of girls, without sanitation.

Another weak argument is that FGM cannot be stopped because the practice is to economically important for the people who perform it. Removing the practice removes their job, and takes them from living a fairly affluent life in their communities, to poverty. The payment a midwife received in Nubian Egypt is described in Female Circumcision, “the midwife received a fee of thirty piastres (1/100 of the Egyptian pound). In addition she was given cigarettes, dates, soap and gargush (sweet crackers),” (Abusharaf 45). Considering the massive prevalence rates across Africa, from 97% in Egypt to 72.7% in Ethiopia and 98.6% in Guinea, (US State Department 28-49) practitioners have a lot of work, and they are generally well paid. But this argument is no reason to continue FGM; the economic benefit of one group cannot possibly justify the massive suffering of another. Also, these practitioners can be retrained (US State Department, 19), and this must be an integral part of any program to stop FGM. In fact, traditional practitioners, in some countries where medicalization is more common (such as Egypt) are already losing their jobs (Mohammed A Tag-Eldin 4) without any outside interference.

The most common argument for FGM is also the greatest misconception about the practice. This is that FGM is an important part of Islam. That is untrue. FGM, “predates the rise of Christianity and Islam,” (United Nations Population Fund), and is not mentioned in the Koran or the Christian Bible. It is mentioned in the Islamic Hadith, (which is generally not considered to be divinely inspired) but only very briefly, and not in a way that requires the procedure to be carried out. Mohammed tells a practitioner of FGM, “when you cut, do not go too far: this allows the woman more pleasure and is more agreeable for the man,”  (Kerstin). Many Islamic leaders and scholars, including the grand mufti of Egypt, came together to make the Cairo and Banjul declarations (not to be confused with the ACHPR), both of which condemned FGM, saying it is against Islam and human rights.

Another common argument for FGM is that it is required to keep women pure before marriage, and that it will prevent them from cheating while their husbands are away (Abusharaf 37). It is possible that this is true, especially considering the violent nature of FGM. However, it is not worth the pain and suffering or the massive human rights violations. This argument is, in and of itself, extremely discriminatory against women.

An interesting relativist argument is that FGM makes women more sexually appealing to men. This is especially true in Nubian culture, where the external female genitalia is often thought of as unattractive, and women say men prefer, “vaginal tightness,” (Abusharaf 32), for sex. This however, is not always true. In several cases in Egypt, men forbade their daughters from undergoing FGM once they were educated as to what the practice was, regardless of their ideas of what was sexually appealing. One man put it this way, “I will not permit you to circumcise my daughter or pierce her ears – both practices alter the natural body and are decadent,” (Abusharaf 35). Also, the preference of men is no justification for the human rights violations of FGM, especially in light of the massive consensus against the practice.

Linked to the idea of beautification through surgery is that FGM is considered to be a practice similar to breast augmentation or enlargement in the Western world (Abusharaf 33). Many women argue that FGM is not mutilation, just as breast augmentation is not considered to be mutilation. This may be true, if they are talking about only removing the clitoral hood (although life-long health risks may still exist with this form). But any other type of FGM, as discussed earlier in this essay, is clearly mutilation. It is dangerous, permanent, and removes a sexual organ. It must be noted that breast augmentation, although it is a (usually) unnecessary surgical procedure, does not carry risks anywhere near that of FGM. Most importantly, breast augmentation is done with the consent of the women undergoing the procedure. Also, breast augmentation is not required by the community in order for women to find a husband.

A similar argument is that FGM is no different than male circumcision in the west (Abusharaf 35). Male babies are also not given a choice and male circumcision has little medical purpose. However, male circumcision has been medicalized. It is not invasive and does not remove a sexual organ. It is similar to type I FGM (when only the clitoral hood is removed), but without unsanitary conditions or possible discrimination. When type I involves the removal of the clitoris (which is often), it is somewhat akin to removing the head of a man’s penis, in terms of the amount of nerve endings in both organs. In the end, this argument is not really a defense of FGM, but a condemnation of male circumcision. However, if something as simple as male circumcision is unnecessary, then something as invasive as FGM is certainly a crime.

In certain parts of Egypt, woman adopted forms of FGM that were less extreme then their traditional practices. Generally, this was a move from type III to type II FGM (Abusharaf 41). But less extreme does not mean no longer extreme, and type II is still a human rights violation that is condemned almost universally. However, this movement is very important. It is proof that FGM can be stopped. Movements like it must be fostered and taken further, as FGM cannot be stopped unless the women in these communities are willing to stop it themselves, as a whole.

Some women in Nubian Egypt have argued that men have nothing to do with FGM, and as such it is not a discriminatory practice (Abusharaf 35). It is true that men have little to do with FGM in Egypt, and often do not even really know what it is. However, the practice is still discriminatory, regardless of who perpetuates it. It still violates rights, is extremely dangerous, and has the potential of placing women into domestic slavery. Also, fathers have the right to make an informed choice about the health of their children. If they do not know what FGM is, they cannot make an informed decision, and their rights are also being violated.

Finally, there is the most powerful and legitimate argument in favour of FGM. It is the argument that some types of FGM do no or very little damage. They are no worse than male circumcision. They are not discriminatory, but are a legitimate coming of age practice and similar to a practice performed on boys. It is put this way in Female Circumcision, “the two gendered rituals play equivalent roles in the transition of male and female children into adulthood,” (Abusharaf 30). This argument is completely true. It is the test to determine the borders of universalism and legitimate relativism. It proves that all types of FGM cannot be lumped into one category, in fact, the categories should be re-organized.

Type 1 FGM should be split into two categories. It is mutilation when the clitoris is removed. However, it is not mutilation when only the clitoral hood is removed. This practice is roughly equivalent to male circumcision. This is because, in both cases, no sexual organs are actually being destroyed. Also, Pricking of the clitoris, a practice under type IV, is not really mutilation and should be recognized as such. It is somewhat debatable as to whether these two practices need to be stopped, because they cannot legitimately be called mutilation when male circumcision is allowable. If they were to be condemned, male circumcision would also have to be condemned.  Pricking and removing the clitoral hood are viable alternatives to mutilation, at least in the short term, but only when they are done in the right conditions. However, there are still problems. The underlying roots of FGM need to be addressed. When the practice is safe, does not involve mutilation, and is nothing but a coming-of-age ceremony, then it is fine. But if it done in an unsanitary way, or is based on discrimination, or contributes to the de-sexualisation of women, the practice must be stopped.

The final argument in favour of FGM proves that a broad, paternalistic approach to ending FGM will not do. The practice must be ended, but it must be ended in an intelligent way. Countries must make the practice illegal. But laws are not enough, they simply establishes the foundation on which a campaign must be built. There must be a multilateral approach. International organizations like the UN, UNICEF and the UNFPA must fund, participate, and give support, as should NGOs like Human Rights Watch and Tostan. There must be support from local governments, and education campaigns need to be funded. The best model of an education to stop FGM comes from Senegal. In that country, approximately 140,000 people have stopped FGM (US State Department 16) thanks to a program put in place by Tostan. It is being replicated in Sudan, Mali and Burkina Faso, and similar programs should be initiated in every other country where FGM is prevalent. According to the US State department, the program, “emphasizes participation and empowerment of woman and uses material that draw on Senegalese culture and oral traditions,” (16). Tailoring programs to the local culture is crucial, as paternalism must always be avoided. Tostan works through, “games, small group discussion, theater, songs, dance, storytelling and flip charts,” (16). Groups meet several times a week, and there are almost no drop outs. It does not immediately condemn FGM, but explains the risks, dispels the misconceptions and explains relativist arguments. People are then allowed to make their own decisions, and they usually decide to stop the practice. Programs like this, that respect and work with local culture, that help movements already in place, and that emphasize a community approach can be successful. There has also been success with similar programs in Egypt, where the government has outlawed FGM and started education campaigns. The prevalence rate is still 97%, but it has fallen to only 33-57% among school age girls (Mohammed A Tag-Eldin 3), meaning overall prevalency rates will decrease in the future. FGM will continue so long as girls will not be able to marry if it is not performed on them, so communities, not just individuals, have to make the choice to stop. That is why a community approach, like the one being fostered by Tostan, is so crucial.

There are some who would say there should be no movement to stop FGM. They are wrong, and their arguments hold no water. There can be no question that FGM is dangerous, and that it is an affront to human dignity. It violates human rights as outlined in UN documents, in African human rights documents, and in Islamic human rights documents. It is extremely discriminatory against women, it is a practice similar to slavery, and it can be a precursor to a form of domestic slavery. Many countries where it is prevalent have outlawed the practice, and education campaigns have been successful in ending it. With massive consensus internationally, regionally, religiously and often locally, with the obvious physical and mental harm FGM does in the short- and long-term, and with its problems relating to slavery, the practice cannot be reasonably argued for. But FGM is a deeply engrained cultural practice. Education programs must be tailored to specific regions, and they must be carried out multilaterally, with upmost respect for local culture.  It is a complicated issue, but it is one that can be sorted out, and one that can be stopped.

Works Cited

Abusharaf, Mustafa. Female Circumcision. Philadelphia, Pennsylavnia: University of Pennsylvanie

Press, 2006.

Ayton-Shenker, Diana. “The Challenge of Human Rights and Cultural Diversity.” 1995. United

Nations.org. 25 October 2008 <http://www.un.org/rights/dpi1627e.htm&gt;.

Kerstin, Lisy. “Female Genital Mutilation and Islam.” November 2007. GTZ. 4 November 2008

<http://www.gtz.de/de/dokumente/en-fgm-topics-islam.pdf&gt;.

Mohammed A Tag-Eldin, Mohsen A Gadallah, et al. “Prevalence of Female Genital Cutting Among

Egyptian Girls.” Bulletin of the World Health Organization (2008): 269-274.

Organisation of African Unity. “African Charter on Human and People’ Rights.” 1981. Banjul,

Gambia: African Union.

Symposium for Religious Leaders and Medical Personnel on FGM as a Form of Violence. “A

DECLARATION ON FGM BY RELIGIOUS LEADERS.” 1998. 10 November 2008

<http://www.uneca.org/docs/Publications/ACW/old/iac/banjul.htm&gt;.

UNICEF. “Press Centre.” 8 March 2003. To the symposium on female genital mutilation in Berlin.

6 December 2008 <http://www.unicef.org/media/media_9297.html&gt;.

United Nations Development Programme. “Newsroom.” 27 February 2008. UN Agencies Unite

Against Female Genital Mutilation. 6 December 2008

<http://content.undp.org/go/newsroom/2008/february/un-genital-mutilation-20080227.en&gt;.

United Nations. “Division for the Advancement of Women.” 1979. Convention and the Elimination

of all forms of Descrimination Against Women. 1 November 2008 <http://www.un.org/womenwatch/daw/cedaw/&gt;.

-. “Office of the High Commissioner for Human Rights.” 2 September 1990. Convention on the

Rights of the Child. 16 November 2008 <http://www.unhchr.ch/html/menu3/b/k2crc.htm&gt;.

-. “Office of the High Commissioner for Human Rights.” June 1991. Fact Sheet No. 14,

Contemporary Forms of Slavery. 1 November 2008 <http://www.unhchr.ch/html/menu6/2/fs14.htm&gt;.

-. “UN.org.” 10 December 1948. The Universal Declaration of Human Rights. 16

November 2008 <http://www.un.org/Overview/rights.html&gt;.

-. “University of Minnesota Human Rights Library.” 30 April 1957. Supplementary Convention

on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. 16 Novmeber 2008 <http://www1.umn.edu/humanrts/instree/f3scas.htm&gt;.

United Nations Population Fund. FAQs on Female Genital Mutilation. 2008. 2008

<http://www.unfpa.org/gender/practices2.htm#7&gt;.

US State Department. Prevalence of the practice of Female Genital Mutilation (FGM); laws

prohibiting FGM and their enforcement; recommendations on how to best work to eliminate FGM. Government Document. Washington, D.C.: United States State Department, 2004.

World Health Organization. Female Genital Mutilation – Policy Guidelines. 2001. 1 December 2008

<http://www.who.int/reproductive-health/publications/rhr_01_18_fgm_policy_guidelines/index.html&gt;.

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