Has this been tried?

[Otterella]

The discrimination lawsuit on California's Prop 8 has got me thinking. Has anyone tried suing the federal government for discrimination? I mean, if we are arguing that orientation is not a basis for denying marriage rights, shouldn't the same logic apply? A baby's sex is not a basis for denying protection against genital mutilation. Federal law protected girls in 1995. So any boy born and circ'ed since 1995 should technically be able to sue the government for discrimination for not giving him the same protection given to girls.

[Jenne]

Um, not a lawyer but I think that is BRILLIANT!

Jenne

[Toolip]

interesting idea. I just heard someone arguing on the radio that people are going to try and stretch the ruling (if it goes against prop 8) to apply to all kinds of other situations (as if it was a bad thing). They didn't use this example but if people are afraid it could happen, maybe it can!

[Fellow Traveler]

This has not actually been tried yet so far as I know. The idea has been discussed here before, with attorneys IRL contributing to the discussion. I've also had the discussion with IRL attorneys on other boards. The long and short of it is that it would be a really difficult case to even get heard let alone won in the way we think it should be heard and decided. The odds are very very long for now.

[Ron_Low]

Originally Posted by Otterella

The discrimination lawsuit on California's Prop 8 has got me thinking. Has anyone tried suing the federal government for discrimination? I mean, if we are arguing that orientation is not a basis for denying marriage rights, shouldn't the same logic apply? A baby's sex is not a basis for denying protection against genital mutilation. Federal law protected girls in 1995. So any boy born and circ'ed since 1995 should technically be able to sue the government for discrimination for not giving him the same protection given to girls.

The US FGM law was passed in 1996 and went into effect in 1997, so the first child the law explicitly failed to protect turns 18 in 2015. You'd better believe there will be legal action at that time. The AAP knows it too. One has to wonder how it's affecting their bizarre policy pronouncements.

[Quirky]

The problem is, the equal protection argument doesn't work from a legal standpoint. IMO. I'm quoting myself from other threads here:

The Fourteenth Amendment only guarantees that the states shall not pass laws that violate constitutional equal protection guarantees. When it comes to the federal government, it's the 5th Amendment due process/equal protection clause that applies.

Moreover, it's not an absolute prohibition -- laws are held to higher or lower standards depending on the group classification involved. Gender is not a class that gets strict scrutiny; for gender, an intermediate standard of review applies. Meaning that it's OK for the government to pass laws benefiting or burdening one gender over the other if the governmental objective furthers important and specified governmental purposes and the classification is substantially related to those purposes.

Which is all by way of me saying -- even if you could get a case to court challenging the FGM law, which is problematic for other reasons I won't bore you with right now, I think there's every possibility that the FGM law would be upheld under an equal protection analysis even though it doesn't protect boys.

I agree with the policy and ethical argument that both genders deserve protection from genital cutting, I just don't think that there's a constitutional law route to get from here to there.

Keep in mind too that the interpretation of the Fourteenth Amendment equal protection clause is not so cut and dried as "a law applies to one gender and not the other so it's invalid." Basically, depending on the classification that a governing body has set up, the courts will apply various degrees of scrutiny to the law to see if it passes muster. States can and do write laws all the time that apply unequally to various classes of people - but as long as the law has a rational relation to a legitimate state objective, the law will likely pass muster. There are "suspect classes" that will bring "strict scrutiny" from the courts - for example, race and national origin - and in those cases the governing body must show that there is a compelling interest underlying the law and the classification is necessary to further that interest.

Cases involving gender classifications are judged by a intermediate standard that is higher than "rational basis" but lower than "strict scrutiny." Gender-based laws have to be substantially related to an important government interest to pass muster.

http://www.mothering.com/discussions...ual+protection

Now, I'm not a constitutional lawyer but I am a lawyer and I have yet to see a convincing argument how the FGM law in particular, or the legality of male circumcision and illegality of female circumcision in general, can be said to rise to the level of a constitutional violation.

Certainly men can sue their doctors on their own behalf in tort actions for battery (arguing that the consent of the parents to circumcision was invalid for lack of informed consent, for example) or medical malpractice. These types of cases have been brought and won. But in the broader picture, I don't think there's a case at the federal level for violation of equal protection.

I would be happy to hear if another attorney, particularly those who work on circumcision issues, disagrees!

[K703]

Re: Quirky and quotes

About the government needing a purpose in passing a law that treats the genders differently: In the case of MGM vs. FGM, what government goals does it accomplish by protecting one but not the other? Here I'll compare it to another gender-based classification: requiring males but not females to register with Selective Service. Although that is a topic of debate in itself (both with the gender classification and having military conscription period), that was upheld since only males are eligible to serve in combat (as of the present; if that changes then the SSS may face another challenge). With genital mutilation though, no apparent government incentives are accomplished by protecting girls but not boys (other than satisfying the cultural wishes of those who want to continue circing boys but not girls).

As for which amendment protects which level of government: Fifth for federal, Fourteenth for states and lower.

Disclaimer: I am not a lawyer, so don't take what I say as if I were one.

[Pirogi]

Originally Posted by K703

About the government needing a purpose in passing a law that treats the genders differently: In the case of MGM vs. FGM, what government goals does it accomplish by protecting one but not the other? Here I'll compare it to another gender-based classification: requiring males but not females to register with Selective Service. Although that is a topic of debate in itself (both with the gender classification and having military conscription period), that was upheld since only males are eligible to serve in combat (as of the present; if that changes then the SSS may face another challenge). With genital mutilation though, no apparent government incentives are accomplished by protecting girls but not boys (other than satisfying the cultural wishes of those who want to continue circing boys but not girls).

And also, if the case were won, what would the effect be? To protect boys under the genital mutilation act, or to remove protection for both boys and girls?

[Fellow Traveler]

Originally Posted by Pirogi

And also, if the case were won, what would the effect be? To protect boys under the genital mutilation act, or to remove protection for both boys and girls?

I suspect that Quirky will have to follow up on the first point but to the second, I believe the effect would be to abolish the FGM law. To cover both, a new law would have to be passed in the normal manner.

[Quirky]

Originally Posted by Fellow Traveler

I suspect that Quirky will have to follow up on the first point but to the second, I believe the effect would be to abolish the FGM law. To cover both, a new law would have to be passed in the normal manner.

That is my belief. If the FGM law were successfully challenged under an equal rights theory, it would be declared unconstitutional and nullified. Congress would have to pass a new law.

And IIRC that's what usually happens.....I seriously, seriously doubt that a court would read into the FGM statute an intention to protect both girls and boys. There's no way a court would say that the FGM statute should be extended to outlaw male circ.

I think as a moral argument boys absolutely deserve the same legal protections as girls because circumcision is a human rights violation. As a legal strategy, I think an equal protection challenge to the FGM bill can only fail.

[Pirogi]

Originally Posted by K703

About the government needing a purpose in passing a law that treats the genders differently: In the case of MGM vs. FGM, what government goals does it accomplish by protecting one but not the other?

...

With genital mutilation though, no apparent government incentives are accomplished by protecting girls but not boys (other than satisfying the cultural wishes of those who want to continue circing boys but not girls).

Upon further reflection, I think there actually is a government incentive to fail to protect boys from genital mutilation, although it would never be voiced or even acknowledged. It's the same reason that we as a society have not stopped violence against women and children in childbirth yet, and unrealized in that manifestation as well.

A society that promotes violence against newborn infants values and promotes aggression and dominance. Michel Odent has excellent writings on this topic. A society that promotes genital mutilation against boys promotes conditioning for them to be aggressive, mistrustful, and violent. As a country that boasts the most powerful, mostly male military in the world, I believe it would be fallacy not to recognize the power that routine infant circumcision has in furthering our cultural mores in the US toward independence (mistrust) and power over others.

Protecting women from this violence allows them to develop "normally," and has in the past made it easier to control them in our male-dominated world. However, I think therein lies our hope. I believe that the explosion of information communication has had the effect of mobilizing a positive force in women and men to "wake up" to many different cultural issues. We are the force for change. It will happen.