Female Genital Mutilation: The Zero Tolerance Imperative

Female genital mutilation (FGM) remains an active challenge in the United States. ¹ Ongoing efforts to stem the practice align with the aspirational zero-tolerance goal of the United Nations (UN) to end “Female Genital Mutilation by 2030.” ² It is in this context that the UN Secretary-General, Antonio Guterres, called on members of the UN to “join forces to make FGM history and ensure a brighter, healthier, and more just future for all women and girls everywhere,” with an emphasis in 2025 on “stepping up the pace” of action. ¹ In the United States, the U.S. Department of Justice (including its Federal Bureau of Investigation and the U.S. Department of Homeland Security’s [in particular its U.S. Citizen and Immigration Services and U.S. Immigration and Customs Enforcement]) has led the effort. ¹ In this Commentary we review the latest insights as to the prevalence of FGM in the United States as well as the legal means presently in place to preclude the future exercise thereof.

According to the World Health Organization (WHO): “More than 230 million girls and women alive today have undergone FGM in 30 countries in Africa, the Middle East, and Asia where FGM is practiced.” ³ The WHO makes further note of the reality that “FGM is mostly carried out on young girls between infancy and age 15” and that it constitutes “a violation of the human rights of girls and women.” ³ The UN, for its part, adds that FGM offers no health benefits. ² Moreover, FGM can lead to immediate health risks, as well as long-term complications to women’s physical, mental, and sexual health and well-being. ³ The practice of FGM entails the “partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.” ³ Since 2008, the World Health Assembly (WHA) has been on record (WHA61.16) in support of the outright elimination of FGM. ³ Similar concerns were articulated by the United Nations Children’s Fund. ⁴

It is not clear how widely FGM is practiced in the United States at the present time. In 2016, the Centers for Disease Control and Prevention (CDC) reported indirect estimates of the” number of women and girls who were at risk for undergoing FGM or its consequences in 2012.” ⁵ As noted by the CDC, the data gathered revealed that “as many as 513,000 girls and women could have experienced FGM/C or be at risk of experiencing it in the future.” ⁵ This estimate represented a 3-fold increase relative to a 1997 estimate (based on 1990 data) that the CDC attributed to an increase in the number of immigrants from nations wherein FGM is routinely practiced. ⁵ As noted by the authors, ongoing monitoring of the U.S. prevalence of FMG is critically required with an eye towards supporting “efforts to prevent the practice in the United States” as well as towards providing “needed health services to women who have undergone FGM.” ⁵

Federal U.S. law, 18 U.S. Code § 116 (Female Genital Mutilation; Public Law 104-208), enacted in 1996, subjects any who performs FGM on a person under the age of 18 to a fine, imprisonment up to 10 years, or both. ⁶ Notably, the law’s definition of FGM is “any procedure performed for non-medical reasons that involves partial or total removal of, or other injury to, the external female genitalia,” and it explicitly includes not only clitoridectomy and “excision or the partial or total removal (with or without excision of the clitoris) of the labia minora or the labia majora, or both” and “infibulation, or the narrowing of the vaginal opening (with or without excision of the clitoris),” but also “other procedures that are harmful to the external female genitalia, including pricking, incising, scraping, or cauterizing the genital area.” ⁶ The statute currently also prohibits transportation of a person from the U.S. to another country for purposes of having FGM performed upon them. ⁶ In 2018 a Michigan U.S. District Court held that the statute was unconstitutional in that it exceeded the federal government’s enumerated powers. Partially in response to this decision, the statute was amended by the STOP FGM Act of 2020 [Public Law No: 116-309] to add a so-called “jurisdictional hook” to the offense, such as interstate or foreign travel or payment or communication “using any means, channel, facility, or instrumentality of interstate or foreign commerce or in or affecting interstate or foreign commerce.”^6,7 It also required “the Attorney General, in consultation with the Secretary of Homeland Security, the Secretary of State, the Secretary of Health and Human Services, and the Secretary of Education” submit an annual report to Congress. ⁷ The report in question is to include “an estimate of the number of women and girls in the United States at risk of or who have been subjected to FGM.” ⁷ Also to be included is information on the “protections available and actions taken, if any, by federal, state, and local agencies to protect such women and girls” and on “actions taken by federal, state and local agencies to educate and assist communities and key stakeholders about FGM.” ⁷

An arbitrary, religiously imposed involuntary intervention, FGM is widely viewed as a subject of zero tolerance. Indeed, the federal statute explicitly notes that it “shall not be a defense to a prosecution under this section that FGM is required as a matter of religion, custom, tradition, ritual, or standard practice.” ⁶ Ongoing efforts on the part of the UN and its member states to see to the elimination of FGM have yet to render it a thing of the past.