Association for Genital Integrity: Canada's Court Challenge
This document has been drafted by a group of Canadians dedicated to reducing and eventually eliminating the practice of infant male circumcision in Canada. We welcome comments, criticisms, and suggestions from all visitors.
The practice of neonatal circumcision has come under increasing fire lately for two reasons:
- Scientific studies have shown that circumcision removes specialized sexual tissue.
- Canadians are becoming increasingly aware of the need to promote and protect human rights.
The debate over circumcision has focused on medical pros/cons, parental preferences, and religious beliefs. Our goal is to direct attention to the ethical, legal, and human rights issues raised when part of a normal organ is summarily removed from a person who has no medical need for surgery and who is legally incapable of giving informed consent. For the most part, these critically important issues have been ignored.
Work done in Canada to date suggests that none of the agencies involved in regulating infant male circumcision (colleges of physicians and surgeons, human rights commissions, children's advocates, children's aid societies, ministers of health, ministers of justice, solicitors general) are prepared to show leadership on this issue. Consequently we believe the only way to bring about change is through the judicial system.
We propose a legal challenge to section 268 of the Criminal Code of Canada on the grounds that this section is insufficient in scope. Section 268 prohibits all forms of female genital mutilation (FGM). The basis of the challenge would be that section 268, as written, fails to protect males from genital mutilation and thus contravenes at least one provision of the Canadian Charter of Rights and Freedoms—namely, section 15(1), which guarantees equality between the sexes. It is highly probable that section 268, as written, also contravenes section 7 of the Charter, which guarantees security of the person.
Section 268 of the Criminal Code provides:
[Excerpt from Chapter C-46—An Act respecting the Criminal Law (Criminal Code)]The above section of the Criminal Code names body parts found only in females: the labia majora, labia minora and clitoris. The use of such gender-specific anatomical terms implies that males are not protected equally under the law. Males, no less than females, are subject to an unnecessary surgical intervention on the genitals—namely, non-therapeutic circumcision. The difference in the degree of protection conferred on males as compared to females is an obvious violation of section 15(1) of the Charter.
268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
(3) For greater certainty, in this section, "wounds" or "maims" includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where
(a) a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or
(b) the person is at least eighteen years of age and there is no resulting bodily harm.
(4) For the purposes of this section and section 265, no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).
R.S., 1985, c. C-46, s. 268; 1997, c. 16, s. 5.
[End of excerpt]
Furthermore, infant male circumcision contravenes the section 7 Charter rights of non-consenting males to "security of the person and the right not to be deprived thereof."
The relevant sections of the Charter are as follows:
[Excerpt from Constitution Acts 1867 To 1982, Constitution Act, 1982, Schedule B Constitution Act, 1982 (79), Part I Canadian Charter of Rights and Freedoms]The intent of the challenge is not to have section 268 repealed or to eliminate the protection women rightly deserve. The objective is to have the government of Canada recognize that males deserve equal protection under the law. It is extremely important to note that explicitly conferring such protection on males would not in any way diminish the protection provided to females.
Life, liberty and security of person.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Equality before and under law and equal protection and benefit of law.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[End of excerpt]
An ongoing letter-writing campaign forms a key part of the strategic approach. Standardized letters have been sent to the organizations and public officials connected with regulating various aspects of neonatal circumcision. These organizations and public officials include:
- Colleges of physicians and surgeons
- Human rights commissions
- Children's advocates
- Children's aid societies
The responses received to date have been evasive. The authorities seem set on avoiding the important ethical, legal and human rights issues raised by non-therapeutic circumcision of male infants.
The letter-writing campaign has shown that systemic discrimination with respect to the issue of genital mutilation is deeply embedded in the Canadian social fabric. We believe the information and evidence gathered by this campaign can be used to develop a case and initiate a formal legal challenge.
Below is a brief survey of the replies to the standard letters:
Colleges of physicians and surgeons. The replies have documented inconsistencies between organizations in different provinces, non-compliance with legislation, and above all, evasiveness. Only one college (Alberta) made an attempt to answer the 10 questions included in the standard letter. The President of the Nova Scotia college, Dr. Patricia Pearce, stated categorically that neonatal circumcision was a "legal medical act," though the lawfulness of this practice has been questioned by experts such as Dr. Margaret Somerville, a law professor at McGill University and one of Canada's leading medical ethicists. Like the representatives of several other colleges, Dr. Pearce did not adduce any evidence in favour of her position and simply declined to discuss the matter further.
Faced with the inescapable fact that infant male circumcision is not medically necessary, the colleges of physicians and surgeons have abdicated their responsibility to establish and monitor standards of professional ethics among medical practitioners. The colleges' responses to the standard letter make it clear the colleges are not prepared to give due consideration to the ethical, legal and human rights implications of neonatal circumcision. By defending the rights of physicians to undertake an unnecessary surgical intervention without the personal consent of the patient, the colleges have placed themselves in an untenable position.
Human rights commissions. The standardized letters have revealed that the commissions are unwilling at the present time to deal with the gender equality issues associated with circumcision. None of the commissions have policies on male circumcision, and only the Ontario commission has a policy on female genital mutilation (FGM). The references to male circumcision in this policy were recently revised to reflect the position of the Canadian Paediatric Society. The policy used to characterize male circumcision as beneficial. The policy changes were brought about through successful lobbying by Canadian activists.
Children's advocates. Standardized letters have recently been sent to the children's advocate in each province. The responses have been evasive. The Alberta reply, for example, advises that questions related to circumcision should be directed elsewhere.
Children's aid societies. Of all the authorities to whom we have sent a standard letter, the children's aid societies seem to be the most forthcoming in their responses. The acting executive director of Manitoba Child Protection and Support Services stated that she took the issue seriously and would be prepared to participate in public discourse and legislative review.
Government officials. We believe that one way of obtaining open and aboveboard responses from the colleges of physicians and surgeons may be to request the assistance of the appropriate minister. Most provincial legislation allows the minister in charge to make specific requests of the college councils and registrars. This approach has borne fruit in B.C., where the ministry of health has sent a letter to the provincial college of physicians and surgeons asking the college to expedite its response to questions about the ethical and legal implications of routine infant circumcision.
GAPS TO BE FILLED
To round out the documentation, more letters must be written to leading ethicists, human rights experts and children's rights advocates. This will provide further information on the positions of public bodies and individual Canadian scholars.
WHY GO TO COURT?
Over the past few years many Canadian agencies, both governmental and non-governmental, have been approached by citizens on the subject of non-therapeutic infant male circumcision. Concerned individuals have written hundreds of letters to public officials such as the federal minister of justice, provincial cabinet ministers, heads of child welfare agencies, and the registrars of colleges of physicians and surgeons in all Canadian jurisdictions. (Nearly 500 such letters are available online).
Unfortunately these authorities are very reluctant even to respond to arguments against routine infant circumcision, much less weigh the facts and provide leadership in eliminating the practice. There seems to be no alternative to using the courts as a way of ensuring that the rights of baby boys are respected and that systemic discrimination against them on the basis of sex is eliminated.
HOW WILL THE COURT CHALLENGE BE FUNDED?
A national non-profit organization called the Court Challenges Program (CCP) was set up in 1994 to provide funding for cases that seek to defend language or equality rights. An application for funding from the CCP is being drafted; this application can be viewed online.
Note that this is only an application for funding case development. It does not mark the launching of a legal action. There is no guarantee the CCP will allocate funds for our proposed action.
The case development includes gathering information, showing evidence of discrimination, and obtaining expert advice. A substantial amount of evidence has already been gathered, but more work remains to be done.
At present, the main supporting document for the application is a paper by Dr. Arif Bhimji entitled "Infant Male Circumcision: A Violation of the Canadian Charter of Rights and Freedoms." Other documents and papers have also been collected. These will be used in the application for funding and in any subsequent formal challenge.
HOW CAN YOU HELP?
We welcome ideas and suggestions from individuals who are knowledgeable about circumcision. We would also like to acquire copies of correspondence with public bodies on this subject. If you possess letters that we do not already have on file, please contact us using the feedback link below.
Once a legal challenge has been launched, we may require additional funding to take our case to court. We hope you will be able to contribute.
*For measures being taken in the United States to end legalized MGM (male genital mutilation) of infant boys, see MGMBill.org. FGM (female genital mutilation) continued in the United States until it became illegal and punishable as a crime with the FGM Bill in 1996.*One man who sued and won tells his story here.
Thanks so much for posting this. I had no idea anyone was taking action in Canada, and I'm so glad to hear it. Please continue to keep us updated on how this progresses and how we can help.ReplyDelete
It's great to know this is going on in Canada! Thanks for the info.ReplyDelete
I live in Canada and they do not even ask if you want your son circumcised. The topic was not even brought up when I had my son. Furthermore, you have to pay out of pocket, starting at $200 and up in most provinces and you have to find a doctor to do it, as quite a few no longer will. Anyone who wants to pay out of pocket to mutilate their son "so he looks like daddy" is an idiot. JMO though. :DReplyDelete
Where can I find the stats that say Canada is at 9%? I have a friend who wants to be able to use the reference.ReplyDelete
The Canadian Institute for Health Information, which in 1994 took over the national Hospital Database from Statistics Canada, reports that in fiscal 1996/97, circumcision was performed as a primary procedure on about 20% of Canadian male neonates, however by 2005, this had declined to 9.2%, which brings the genital integrity rate up to 90.8 percent.ReplyDelete
We do not yet have the CIHI reported rates for 2009, but genital integrity has increased across Canada in the last 5 years, and is likely to be closer to 95% as we move through 2010.
Thank you, but now I have another question - why does this site contradict that low percentage? http://www.courtchallenge.com/refs/yr99p-e.htmlReplyDelete
And how do I know which stat is accurate?
The National Hospital database is actual rates of recorded circumcision surgeries that occurred during that year in hospitals across Canada.ReplyDelete
The link you quoted was a phone interview of 6500 mothers across Canada who were randomly called and asked if they circumcised their son or not.
Phone interviews are not going to be representative of the entire nation -- some mothers do not have phones, some don't answer, some don't wish to participate. Many people only have cell phones, so it only includes mothers who have new listed home phones as well. There are many variables and reasons the 2 percentages do not match.
Hospital surgery statistics are more reliable than random phone interviews, but someone could site either study if it fit their agenda.
What is with the constant use of the word "non-therapeutic"? Exactly when would cutting off someone's penis be "therapeutic"?ReplyDelete
I believe that the hospital statistics that are very low are only taking into account hospitals that (a) collect this data and (b) only accounts for the circumcisions that occur before discharge - therefore not including circumcisions performed at medical clinics, or in religious rituals, etc.ReplyDelete
The telephone survey takes into account parents who have had it done within I believe a year (or maybe more), I can't remember the stats.
As well, the phone survey could show higher results if the questions asked of the parents led them to feel more comfortable saying their children fit the "cultural norm" of circumcising, or for some other reason didn't understand the question. For example, if an East Indian mother answered the phone, she may have not understood English. The practice of circumcision is very uncommon among East Indian families, but few would have participated in the study.
Clearly, both studies have flaws and different operational definitions that led to their different numbers.
I am Canadian, and have 2 intact boys:D I don't even remember if they asked me if I wanted it to be done to either of my boys at all(born in 2002 and 2005) I only recently started to think about this topic and I would like to THANK YOU ALL for doing what you have done:) without ppl like you telling the truths in this matter, I believe it would have been offered to me for my boys, I know that my mother felt the pressure to circ my brother(in 1974) at the same hospital I delivered my boys at, she was very adamant that it is against our culture (European) and thankfully they did not push it(much) further... I believe what you have done with sites like these is the very reason my boys were spared...ReplyDelete
I also asked my doctor recently about his stand on it(he is European also) and he says he has never done it for personal reasons, I mentioned to him that other doctors are against it and he was very interested in it, so I forwarded him some info about d.o.c. and n.o.c.i.r.c. to his FB and I will follow up with him at my baby's next appt. I do hope he joins D.O.C. and helps to educate new parents and also his colleagues about this...
Yes, if you go to the website, you will find that the government committee responsible for approving public funds to support Human Rights cases within Canada has so far turned down this organization... That really burns me!ReplyDelete