Five things you need to know about the controversial court ruling on FGM/C in USA: Sahiyo explains

by Sahiyo

On November 20, 2018, United States District Judge Bernard Friedman ruled that the US Federal Law banning Female Genital Cutting (FGC, also known as Female Genital Mutilation or FGM) is unconstitutional. With this ruling, the judge dismissed key charges of FGM against two Michigan doctors and six other people accused of practicing genital cutting on several minor girls.

However, in the same ruling, Judge Friedman acknowledged that the practice of cutting a female’s genitalia is “despicable”.

The ruling came as a shock to survivors of FGC and human rights activists advocating to end FGC, not just in the USA but all over the world. But there is more to this complex and controversial court ruling than the news headlines suggest. In order to better understand the ruling and its implications for communities that practice FGC, read Sahiyo’s comprehensive explainer below:

What is the US District Judge’s ruling on Female Genital Cutting all about?

In April 2017, the US federal government prosecuted Dr. Jumana Nagarwala, Dr. Fakhruddin Attar and his wife Farida Attar — all members of Michigan’s Farmington Hills Dawoodi Bohra mosque — for subjecting two minor girls from Minnesota to FGC. Subsequently, five other women from the Dawoodi Bohra community were prosecuted for performing FGC on at least nine girls in the Michigan area. This historic case was the first time that anyone had been charged under the US federal law prohibiting FGC — a law that had been introduced by the federal government back in 1996.

To understand the US District Court’s ruling in this case on November 20, it is important to understand the federal nature of the US government and its criminal justice system. Under federalism, some laws can be passed by Congress — the federal or central government — and are applicable to all states in the country. Some other laws can only come under the jurisdiction of individual state governments, and cannot apply to the whole country.

In his ruling in the FGC case, Judge Friedman of the federal-level district court stated that “as despicable as this practice may be”, FGC is technically a “local criminal activity”, and Congress (the federal government) does not have jurisdictional authority to regulate it. Even though the federal law against FGC has been in place since 1996, he stated that it is “unconstitutional.”       

Why is this ruling controversial?

The district judge states that the crime of FGC should be regulated by individual states. But the US does not actually have laws against FGC in every single state. At the moment, only 27 out of 50 US states have a state law banning FGC. There is currently a state law in Michigan banning FGC, but the law only came into effect in 2017 after the federal case involving Dr Nagarwala and Dr Attar came to light. The doctors cannot be prosecuted retrospectively under this state law.

Judge Friedman’s ruling declares the federal law against FGC to be unconstitutional based on a technicality. However, the ruling is controversial on at least two fronts.

First, prosecutors and other human rights advocates argue that FGC cannot be considered just a local criminal activity, because it often involves transporting minors across state borders to get their genitals cut by doctors who are paid to perform the ritual. In this case, for instance, two minor girls were transported from Minnesota to Michigan to get FGC done by Dr Nagarwala. Therefore, the federal law banning FGC — which Congress had passed in 1996 under the “Commerce Clause” — should be applicable in this case. Judge Friedman’s ruling does not consider this aspect.

Second, this ruling is insensitive to survivors of FGC and sends out a dangerous message to women from FGC-practicing communities: that their lives and bodies can be put at risk on the grounds of questionable technicalities.

Does this ruling put more girls at risk of being cut?

For the time being, yes: this ruling can put girls at risk of being but. The Centers for Disease Control and Prevention has estimated that 513,000 women and girls have experienced or are at risk of FGC in the United States. And this figure is an underestimation. Many women and girls at risk live in one of the 23 States which have not passed laws against FGC.

Since the ruling puts the onus of regulating FGC only to individual states, many of these girls are at risk of being transported from states that have laws banning FGC to states that currently do not have laws banning FGC, so that they can be cut with impunity. Only 11 of the 27 States with anti-FGC laws have specific provisions banning the transportation of a child out of the State to perform FGC.

Since the US is a strong country with a high degree of influence on global cultures, this ruling also ends up unintentionally condoning genital cutting for FGC-practicing communities all over the world. We are already seeing this in the global Dawoodi Bohra community, where supporters of Female Genital Cutting have taken to social media to celebrate their “victory” in the US FGC case, and to claim that they will continue cutting girls.

Is this the end of the case, or can the ruling be appealed?

This District Court ruling is not the end of the case. This is a lower court decision which can and almost certainly will be appealed by prosecutors from the US Government, and it is possible that over time, this case will be taken to the Supreme Court.

Additionally, two charges remain against Dr Nagarwala, including conspiracy to travel with intent to engage in illicit sexual conduct, and obstruction of justice. Her trial is set to begin in April 2019.

What is the way forward now, for those of us working to end FGC?

Laws are an important deterrent against FGC, and help to reinforce the fact that cutting female genitals is a human rights violation. In light of Judge Friedman’s ruling, activists and communities in the United States should now urge their elected representatives to pass laws banning FGC in every single state of the country. As a global leader in human rights, the US should also do this to set a precedent in many Asian countries where there are currently no laws against FGC.

However, at Sahiyo, we believe that laws can be effective only when accompanied by social change movements on the ground. We therefore encourage everyone to engage in dialogue around FGC, to break the silence around this taboo topic, listen to women’s voices and recognise that FGC is harmful to girls and women.

 

To learn about the history of the Michigan case, click here

Read more at U.S. Court’s dismissal of FGM/C charge in Michigan case is disappointing but does not condone genital cutting.

Read the Amicus Brief for Dr. Nargawala hearing on November 6, 2018, submitted by Equality Now, WeSpeakOut, Sahiyo, And Safe Hands For Girls in support of the United States.

Read the U.S. End FGM/C Network Statement on Judge’s Decision in Michigan Case.

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Female Genital Cutting charges dismissed but our work continues: Global reactions to Michigan case news

By Sahiyo

On November 20, U.S. District Judge Bernard Friedman dismissed the female genital cutting charges in the historic Michigan case involving girls from the Dawoodi Bohra sect, emphasizing that FGC should be regulated by states as a “local criminal activity.” Congress enacted the 22-year-old federal law banning FGC in 1996 — the law Judge Friedman has declared unconstitutional.

Charges were dropped against two Michigan doctors, Dr. Jumana Nagarwala and Dr. Fakhuruddin Attar, and six others accused of subjecting at least nine minor girls to FGC. However, Dr. Nagarwala, Dr. Attar and his wife, Farida, and a mother remain charged with conspiracy to obstruct an official proceeding. Dr. Nagarwala is also charged with conspiracy to travel with intent to engage in illicit sexual conduct.

In light of these developments, we would like to share the responses of many Bohras and other activists working to end FGC.

“What is so disappointing to me is that justice will be delayed in this case. There is a growing, global movement against khafz/FGC and we need positive judgments to send a strong message to our community that this practice is harmful and illegal. We must protect future generations of Bohra girls.”
~ Farzana Doctor, Canada  

“By declaring the federal ban on FGM/C unconstitutional, Judge Friedman opens the door for parents to do exactly what was done in this case — take their daughters from states that ban FGM/C to states that don’t so they can be cut.”
~ Umme Kulsoom Arif, USA

“The ruling on the jurisdiction of this case is giving some folks a perceived green light to proudly say that khatna/khafz/FGM/C is not illegal in the US after being afraid to say it out loud after Nagarwala was arrested. But people should understand that there are many state laws still in place (including in Michigan now) and the judge said that FGM/C is a ‘criminal activity’ so parents beware. This does not give you permission to cut your daughters. It will be a regrettable time in history if there is an uptick in the practice of FGM/C in the US because of this technicality in the jurisdiction of this case.”
~ Zehra Patwa, United States

“Shameful really! While 30 other countries have made FGM illegal, US, the supposed defender of human rights, has just shown the world what American justice is…women’s rights are not just not important for the federal court.”
~ Saleha, Canada

“Shocking judgment. But at the same time judgment gave us more spirit to work hard and achieve the desired goal to end FGC. To bring social change takes time but nothing is impossible. I’m sure through our collective efforts we will achieve our goal one day.”
~ Chandni Shiyal, India

“While on our climb towards the summit, we are going to face slips and stumbles but the climb must go on…..this judgement though disappointing is a mere stumble or slip….”
~ Fakhera, India

“This judgment is clearly based on a technicality of the federal versus the state jurisdiction. Irrespective, FGC still continues to be a violent act against 7-year old girls. Are we disappointed to hear this decision? Most certainly. However, it’s only a matter of time until people open their eyes and see the truth. Tradition without any logic can only hold its ground so long. Sati used to be tradition too, in this very land. Look where we are now.”
~ Alifya Thingna, India

“One of the most disheartening outcomes of this case is the lack of outrage among our elected officials. Two, recently elected, Muslim women representatives from Michigan and Minnesota (the two states involved) have failed to use their platforms to proactively address this issue. FGM is an issue that affects the safety of women and girls, and constituents in their communities. This decision (and the lack of public outrage) sends a signal to communities who practice FGM that there will be no accountability.”
~ Maryum Saifee, United States

“It’s a sad day for silent seven-year-old girls when there is no clear US law to protect what is truly theirs!”
~ Rashida Rangwala, United States

“I am so disheartened by this decision! It’s actually shocking. I thought at least USA law would give justice to innocent girls.”
~ Alifya Sulemanji, United States

“No little girl in this world should have to go through the trauma of female genital cutting. Cultures should not be empowered to take away the human rights of their members.”
~ Renee Bergstrom, United States

“I feel angry and deeply disappointed. This isn’t over but it’s incredibly discouraging to see our legal system disrespect and let down girls and women being violated in this country.”
~ Lara Kingstone, United States

“यह केस 23 US राज्यो में FGM कानून के अभाव में जीता गया है। यह एक ही टेक्निकल ग्राउंड है। अब यह केस अमेरिकन सुप्रीम कोर्ट में जाएगा। UN कानून के तहत अमेरिका बाध्य है। अब वहां सुप्रीम के आदेश पर फेडरल कानून बन सकता है। कोई भी संघर्स लंबा समय मांगता है कभी जीत कभी हार होती है। हरेक निष्फलता अगली सफलता का बेज़ (फाउंडेशन) बनता है। भारत के कोई राज्य में ऐसा FGM कानून नही है। मगर हम भी UN के सदश्य है। भारत मे भी ऐसा कानून आज नही तो कल बनेगा।”
~ Ibrahim Patel, India

“There are many practices which have been blindly followed from decades. Some of them have been changed, modified or amended in the course of time, with the advancement of research and scientific development. We are just trying to tell the world the actual fact that women undergo suffering with no fault of their own because of FGC.”
~ Insiya Ganjifrockwala, India

“Regardless of the impending appeal, this decision may inevitably embolden many to continue cutting girls. We should take this opportunity to continue to pressure our leaders to stand against FGC as a human rights violation, to bring awareness to the issue, and to protect our girls.”
~ Jenny Cordle, United States

“I would call this verdict as a legislative failure as no justice has been given to the child, and this gives a loophole to people in that country to keep practicing FGC.”
~ Insiya Lokhandwala, India

“It’s sad to note that technicalities can overshadow fundamental human rights. Hoping to strive for a mature treatment of this issue.”
~ Shabana Mashraki, India

“This is horrible! As a victim of FGC myself, I really wanted to see this doctor punished and her punishment to set a strong example for others in the community who practice FGC/ khatna thinking it’s the right thing to do. I feel like we women are never going to get justice for the wrongs done to us. What’s more, these wrongs will continue to go on and little girls will continue to be traumatized. It’s so frustrating and just makes me want to scream.”
~ Shabana Feroze, Bahrain

“I am shocked and deeply disappointed that a Federal judge in the USA has lifted the ban on FGM. It is so, so important that the USA as a world leader takes an unequivocal stand on this human rights issue afflicting women and the girl child.”
~ Zarina Patel, Kenya

“As I was reading, ‘Judge dismisses female genital mutilation charges in historic case.’ My blood was boiling. Where’s the justice for these women? What message is our federal government sending out to all doctors, mothers, and members who carry out this act? That it’s okay for them to violate girls without any real consequences. And what message are they sending out to our young girls? That their bodies are up for grabs? Or that what they’re going through doesn’t matter to us. Sad day to say the least!
~ Aisha Yusuf, United States

“I wasn’t sure what to expect from the  Michigan trial but I never dreamed it would get dismissed on a technicality about federal vs state jurisdiction! I don’t know enough about the law to know if the judge’s ruling was correct but I know I’m not going to let this setback keep me from fighting. Let’s all work together to get legislation passed in the 23 states that don’t yet have a law against FGM so this never has to happen again!”
~ Maryah Haidery, United States

Read more at U.S. Court’s dismissal of FGM/C charge in Michigan case is disappointing but does not condone genital cutting.

Read the Amicus Brief for Dr. Nargawala hearing on November 6, 2018, submitted by Equality Now, WeSpeakOut, Sahiyo, And Safe Hands For Girls in support of the United States.

Read the U.S. End FGM/C Network Statement on Judge’s Decision in Michigan Case.

 

U.S. Court’s dismissal of FGM/C charge in Michigan case is disappointing, but does not condone genital cutting

By Mariya Taher
Co-founder, Sahiyo

I was sitting in my office, reading a blog post submitted to Sahiyo by a woman doing research on Female Genital Cutting in India, when I received a phone call. I answered it, not thinking twice, not knowing that what I was to hear next would leave me dumbstruck.

The call was from a news reporter, who wanted my reactions to the latest news about the United States’ first legal case on Female Genital Cutting (FGC) — the Michigan case involving two doctors and six others brought up on federal charges of performing FGC on nine minor girls in the U.S. I hadn’t heard of the latest news yet. And then, the reporter dropped a bombshell.

It turns out, a U.S. District Judge has dismissed the FGC charges in the case and declared the federal legislation banning and criminalizing Female Genital Cutting in the U.S since 1997 as unconstitutional!

My immediate reaction was, “That’s crazy.” Then my mind shifted to what had happened to me on October 19th, at the inaugural screening of Sahiyo Stories, a collection of digital stories created by U.S. women who have undergone FGC or who have loved ones who have undergone it. After those videos were shown at the screening, a couple walked in, joined the audience, and began to counter the stories of the survivors. They stated that FGC was harmless, that the survivors sharing their stories must only be trying to get attention. I worry that because of what this U.S. District Judge has ruled, what happened at that screening of Sahiyo Stories, might become all too common when survivors share their FGC stories in the hope of preventing harm to future generations of girls.

As stated in the Detroit Free Press by Tresa Baldas

The U.S. District Judge concluded that “as despicable as this practice may be,” Congress did not have the authority to pass the 22-year-old federal law that criminalizes female genital mutilation, and that FGM is for the states to regulate. FGM is banned worldwide and has been outlawed in more than 30 countries, though the U.S. statute had never been tested before this case.

There is no doubt that the decision will be appealed by the government, but this response worries me because without the law, what can we point to, when parents and families are trying to do the right thing and not succumb to the community pressure they face in having their daughter undergo FGC? And at Sahiyo, we do hear from these parents. We hear from parents who tell us they have spared their daughters as well as parents who regret not doing more to protect their daughters, but felt pressured by the community, by members of their families, believing that they had to get it done. That social pressure is real and threatening and at Sahiyo we understand the fear of being ostracised from your family or your community for speaking against what others believe is a religious necessity.

This decision also concerns me because it will be used by proponents of FGC to further suggest that they are justified in pursuing FGC because FGC has been proven harmless. Even though, the fact remains, that this is not at all what the Judge has said in his decision to rule the FGC federal law unconstitutional. To the contrary, the decision made by the Judge clearly recognizes that FGC is a terrible crime.

What the Judge has stated is the following:

“As laudable as the prohibition of a particular type of abuse of girls may be … federalism concerns deprive Congress of the power to enact this statute,” Friedman wrote in his 28-page opinion, noting: “Congress overstepped its bounds by legislating to prohibit FGM … FGM is a ‘local criminal activity’ which, in keeping with long-standing tradition and our federal system of government, is for the states to regulate, not Congress.”

The Judge has ruled that the issue of FGC falls under state law jurisdiction (intrastate) versus federal (interstate). In other words, the judge’s ruling opens up a jurisdiction question and NOT a question on whether FGC is harmful or not.

If “local criminal activity” must be regulated by the state, then it goes to show just how vital it will be for all states in the U.S. to pass laws banning FGC. Currently, only 27 states in the U.S. have such laws. Massachusetts, the state I live in, does not. (See petition ‘Ban FGM/C in MA’).

Even when laws are passed, I believe that it will be important to remember that FGC will most likely still continue just as other forms of gender-based violence such as domestic violence and sexual assault unfortunately continue despite the presence of laws against them. FGC also continues because as a social norm entrenched in the culture, this harmful practice has been touted as a religious or cultural practice that is needed to control women’s sexuality.

This reality points to the importance of education and community engagement to help create social change within communities and amongst groups where FGC might be happening.

To that end, Sahiyo will continue to organize and participate in community events to educate our friends, family and community about the harms of FGC and why it should be abandoned.

Learn more about FGC in the U.S.

If you would like to write about your views on the Judge’s ruling or the Michigan case in general, send a write-up to info@sahiyo.com