Policy Analysis on Female Genital Mutilation FGM

The policy on Female Genital Mutilation (FGM), adopted by the Human Rights Commission of Ontario, Canada, in 1996 (and further revised it in 2000) acknowledges the practice as an internationally recognized violation against women and girls’ human rights and looks at the domestic implications of Canada’s obligations as a signatory to international conventions and treaties which recognize FGM as a human rights violation. The policy’s focus is on the practice of FGM in Canada by immigrant groups who have brought the practice to the country from their countries of origin in Africa and parts of the Middle East and Asia. The policy looks at human rights issues as well as health, social and criminal law concerns. The Ontario Commission acknowledges the complex social and cultural roots of FGM and the need for dialogue and education initiatives within the at-risk communities in Ontario and across Canada. However, it underlines that arguments based on a defence of cultural or religious values should not be accepted as justification for the practice, nor for discriminating against women who have been subjected to, or perceived to have been subjected to, genital mutilation. Significantly, immigrant groups and advocacy organizations in Canada have acknowledged the need to deal with FGM as an internationally recognized health and human rights concern.

This essay will first of all define FGM and look at the reasons the practice has survived in some regions despite international condemnation. It will also give a summary of the key elements of the Ontario Commission’s policy, the arguments it uses to justify its actions and also show that in this case, the need to protect and promote the rights of women and girls is more important than concerns of “cultural imperialism.”

The policy adopted by the Human Rights Commission of Ontario on FGM is based on the over-arching argument that the importance of good health to a woman’s well-being – and that of her family and society – cannot be overstated. Without reproductive health and freedom, women cannot fully exercise their fundamental human rights, such as those relating to education and employment. Women’s disproportionate poverty, low social status, and reproductive role expose them to high health risks, resulting in needless and largely preventable suffering and deaths. The benefits of eliminating the harmful and painful practice of FGM are easily demonstrated, yet the practice persists for cultural and traditional reasons.

FGM is a gender-specific violation of the rights of girls and women to physical integrity. Over the years, FGM has become recognized not only as a health hazard and a form of violence against women and girls, but also as a human rights issue under international law. Efforts at the international level, particularly by United Nations agencies, have placed FGM on women’s health and human rights agendas.

FGM is practised by many ethnic groups, from the east to the west coast of Africa, in southern parts of the Arabian peninsula, along the Persian Gulf and among some migrants from these areas in Europe, Australia and North America. It has also been reported in some minority groups in India, Malaysia and Indonesia. In these societies, FGM is considered a rite of passage preparing young girls for womanhood and marriage. However, often performed without anaesthetic under septic conditions, FGM or “female circumcision” as it is sometimes called, can cause death or permanent health problems as well as severe pain. Despite these grave risks, its practitioners look on it as an integral part of their cultural and ethnic identity, and some perceive it as a religious obligation.

The most severe form of FGM, infibulation, which involves removal of the clitoris, results in trauma that is repeated after each childbirth. In many communities FGM is believed to reduce a woman’s libido, and thereby is further believed to help her resist “illicit” sexual acts. Cultural ideals of femininity and modesty, which include the notion that girls are “clean” and “beautiful” is also another reason for which FGM is carried out (WHO).

The practice has been condemned in many international fora and by women’s groups as a manifestation of gender inequality and an attempt by society to exert total control over women. In countries where FGM is widely practised, however, it is often supported by both men and women, usually without question, and anyone departing from the norm may face condemnation, harassment. It is often practised even when it is known to inflict harm upon girls because the perceived social benefits of the practice are deemed higher than its disadvantages (UNICEF, 2005a).

Though no religious scriptures prescribe the practice, practitioners often believe it has religious support. Religious leaders take varying positions with regard to FGM: some promote it, some consider it irrelevant to religion, and others contribute to its elimination. In most societies, the procedure is considered a cultural tradition, which is often used as an argument for its continuation (WHO). Local structures of power and authority, such as community leaders, religious leaders, circumciser’s, and even some medical personnel can contribute to upholding the practice. The age at which the procedure is performed varies depending on the ethnic group and location. It is sometimes performed on babies, more commonly on girls between ages 4 and 8, but also in adolescence, or as late as the time of marriage or during the first pregnancy. Adult women are under pressure to submit to it in order to ensure the status which marriage and childbearing confer and to demonstrate solidarity with family and community. Younger women and girls have no choice at all (UNFPA).

The Human Rights Commission of Ontario has successfully and forcefully used several arguments to make its case against the practice of FGM among minority communities living on Canadian territory.

International Law: FGM has been condemned by numerous international and regional bodies including the United Nations Commission on Human Rights, the United Nations International Children Emergency Fund (UNICEF), the Organization of African Unity and the World Medical Association. In 1995, the Platform for Action of the World Conference on Women in Beijing included a section on the girl child and urged governments, international organizations and Non-governmental groups to develop policies and programmes to eliminate all forms of discrimination against the girl child including FGM. The United Nations Declaration on the Elimination of Violence Against Women defines “violence against women” as encompassing, inter alia, “female genital mutilation and other traditional practices harmful to women”.

The Commission underlines that in various African countries where the procedure is performed, comprehensive action plans have been developed by women’s groups to attempt to eliminate the practice- although overall progress has been slow. FGM has been outlawed in Sudan since 1946, but it continues to be widely practised. In Burkina-Faso and Egypt, resolutions were signed by the respective Ministers of Health in 1959, recommending that only partial clitoridectomy be allowed, and decreeing that it be performed only by doctors. In 1978, as a direct result of the efforts of the Somali women’s movement, Somalia established a Commission to abolish infibulation.

In 1984, participants from twenty African countries, as well as representatives of international

organizations attending a seminar in Dakar, Senegal, on “Traditional Practices Affecting the Health

of Women and Children” and recommended that the practice be abolished. African states

acknowledged that there was a need to establish strong, on-going education programmes

for meaningful progress towards elimination of the practice.

Rights of the Child: The policy points to the link between FGM and the rights of the child, saying that the Convention on the Rights of the Child asserts that children should have the possibility to develop physically in a healthy and normal way, with adequate medical attention and be protected from all forms of cruelty. The Convention establishes the rights of children to gender equality, to freedom from all forms of mental and physical violence and maltreatment and to the highest attainable standard of health. An article of the Convention explicitly requires States to take all effective and appropriate measures to abolish traditional practices prejudicial to the health of children.

FGM and health rights: The physical and psychological health complications resulting from genital mutilation of women have been extensively documented. The partial or complete loss of sexual function constitutes a violation of a woman’s right to physical integrity and mental health.

Domestic implications of international human rights law: the Commission argues that since Canada plays a prominent role in the international arena as a supporter and promoter of women’s human rights and is a signatory to over twenty major international conventions and treaties, the province of Ontario would be in compliance with its obligations by taking steps to eradicate this practice.

Domestic or national courts are required to interpret implementing legislation in conformity with international convention insofar as the domestic legislation permits. This is also the case in Europe where legislation prohibiting the practice of FGM exists in Sweden, France and Great Britain where the procedure carries a penalty of imprisonment.

Criminal Law: The Criminal Code can be used to control the transportation of female children outside the country for the purpose of obtaining FGM. A memorandum was issued to all Chiefs of Police and the Commissioner of the Ontario Provincial Police, stating that FGM is a criminal offence. In 1997, FGM was included in the Criminal Code and put under “aggravated assault”- “any person who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.” If a parent is present and is in agreement with the act of FGM being performed on their child as well as if the parent performs the operation themselves can be convicted.

Duty to report: In Ontario, a duty to report FGM exists under the policy of the College of Physicians and Surgeons of Ontario (CPSO). Under the CPSO policy, the performance of female circumcision, excision, infibulation and/or reinfibulation by a physician licensed in Ontario, unless medically indicated, would be regarded as professional misconduct. Under Ontario’s Child and Family Services Act,42 there is a duty to report information with respect to a child who is in need of protection. This duty exists despite the provisions of any other Act. If a person has reasonable grounds to suspect that a child is or may be in need of protection, the person is obliged to report the suspicion to appropriate authorities.

The Ontario Human Rights Code: The Ontario Human Rights Code, recognizes the inherent worth and dignity of every person in Ontario. The creation of a society in which all persons can live and work in an environment that is free from discrimination is central to the policy objectives of the Ontario Human Rights Commission in virtue of the Code. There are new immigrants to Canada who may not be aware that some of their traditional or culturally rooted attitudes and values may result in practices that are clearly in conflict with Canadian law, including the Ontario Human Rights Code. FGM is practised within certain immigrant groups- where the families might not consider the operation as a form of physical or sexual abuse. The Commission does recognise the need to treat such issues in a sensitive manner and to educate the public on human rights issues.

The need to work with communities: The Commission acknowledges the complex social and cultural roots of FGM and the need for dialogue and education initiatives within the at-risk communities in Ontario and across Canada. However, it is the Commission’s view that arguments based on a defence of cultural or religious values should not be accepted as justification for the practice, nor for discriminating against women who have been subjected to, or perceived to have been subjected to, genital mutilation. The Commission is committed to working with members and organizations of the at-risk communities, as well as with other agencies in the public sector in

developing public education initiatives around FGM. The efforts of the Commission, together with those of the affected communities and concerned organizations, can help to create an environment in which people are encouraged to eradicate the practice, without imposing a threat to the dignity and cultural identity of the affected communities.

The Commission’s focus is very correctly on eradicating FGM among immigrants in Toronto which are from the regions where FGM is practised. It is estimated that there are 70,000 immigrants and refugees from Somalia and 10,000 from Nigeria. Reliable statistics on the incidence of FGM are not available. However, based on discussions with members of the communities that are at risk, there is some evidence to indicate that FGM is practised in Ontario and across Canada and that in some cases, families from those communities send their daughters out of Canada to have the operation

performed.

The Commission is working with local non-governmental groups to spread the message. The National Organization of Immigrant and Visible Minority Women of Canada has prepared a workshop manual for health care workers and facilitators working with communities that have traditionally practised FGM. The aim is to educate participants about the health and legal consequences of FGM, to correct misperceptions and fallacies about the tradition and to support efforts to eradicate the practice.

As there were no co-ordinated efforts between various professionals and institutions, and no consistent policy in Canada regarding FGM, members of affected communities requested that the Minister Responsible for Women’s Issues establish an Ontario FGM Prevention Task Force. The Task Force, an inter-ministerial/agency/community initiative, was mandated to develop and recommend strategies and policies designed to provide support for girls and women who have been subjected to FGM, to prevent the practice, and to support community work by, and for women affected by genital mutilation.

The focus is not on imposing a foreign value system (the concept of cultural imperialism) on societies in Africa etc. but asking immigrants and religious groups which have come to live in Canada to act in accordance with the country’s concerns about the health of women and their reproductive rights. The policy is therefore based around the idea of the empowerment of women and of ensuring an end to discrimination.

The Commission’s policy has had a direct impact on immigrant communities living in Ontario but also helped to publicise the problem in other parts of Canada and the world. In 1994, in a landmark ruling, Canada also became the first Western country to recognise FGM as grounds for granting asylum. The Human Rights Commission of Ontario has therefore taken a courageous and ground-breaking policy stance to tackle a serious violation of the rights of women.