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:
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 Freedomsnamely, 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-46An 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 genitalsnamely, 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.
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.
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:
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:
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.
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.
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.
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.