Law, religion, and ethics experts comment on the proposed Icelandic circumcision ban

0
72

International controversy was caused in Iceland in February 2018 when MP Silja Dӧgg Gunnarsdóttir proposed a bill that would criminalise the circumcision of male children for non-medical reasons. Generally, supporters of the bill argue that circumcision is akin to child abuse, while opponents argue that it could result in a denial of religious freedom to Muslim and Jewish families wishing to raise their children in their respective religious traditions.

In article on the subject, Méadhbh McIvor, editor of The Religion Factor, points out that while concerns out children’s safety and circumcision are genuine, “it is hard to ignore the fact that calls for infant circumcision to be criminalised coincide with rising anti-Semitism and Islamophobia, both within and beyond Europe’s borders”. The Religion Factor asked scholars of religion, ethics, and law to comment on the proposed ban in order to explore the issues associated with it.

Summary

What is picked up on by the numerous specialist commentators here is that, while the debate on the Icelandic proposed ban on circumcision is often framed as a dichotomy of views, the reality is that it is much more nuanced.

The application of the Protestant, Lutheran, Nordic, secularist understanding of religion to a religious practice which is not based on the same conceptualisation of religion should be included in analysis of the discourse surrounding the proposed ban. So too are the applications of health discourse, the concepts of harm and child protection, and the understandings of choice which are being applied to the debate. It is also important to analyse the debate in the context of rising Islamophobia and anti-Semitism within Europe, but also regulations on female genital cutting, which are often more stringent than those currently concerning male genital cutting despite sharing the nuance of arguments for and against circumcision.

Amid this intersection of issues of law, ethics, and religion, one commentator also raises how religious communities affected by the ban should react to it if it were to come into law, and there’s certainly scope for more thought on this area in the coming weeks.

Richard Amesbury, Chair and Professor of Philosophy and Religious Studies at Clemson University in the USA, comments that “framing circumcision as a “religious” practice – while understandable – risks simplification and distortion, placing it in an untenable legal position”. The right to religious freedom is framed by the opposition to the ban as equal to the right to bodily integrity, but this raises the question of which right is put above which in this scenario.

Amesbury says that the framing of circumcision as a religious practice frames it as optional, which it isn’t because of its significance in both the Islamic and Jewish faiths, in which is symbolises belonging. Therefore, “Appealing to religious freedom on behalf of circumcision is thus ambiguous, because an individualistic and voluntaristic conception of religion is ill-suited to the cultural understandings that give the practice its meaning”.

He also links the proposed ban on circumcision to a sense of belonging that coincides with concerns about immigration and cultural difference, arguing that the uncircumcised penis is associated with the ‘secular’ “not because it is not religious – it is, among other things, Christian – but because it functions as a limit to the to the concept of free religion” because bodily integrity is not affected by religious beliefs and practices. In this way, secular law is uncomfortable with religious practices which cross these limitations, and circumcision is one of these.

Helge Årsheim, a Postdoctoral Fellow in the Faculty of Theology, University of Oslo, Norway, argues that the opposing arguments that have emerged in response to the proposed ban “are necessary corollaries of the increased legal interest in regulating religion, obliged to co-exist whatever the outcome of the proposal”.

He writes that this these opposing arguments over the boundaries of religion occur whenever law seeks to determine the boundaries of religion, and this is because the existing legal frameworks that provide protections and exemptions for religious beliefs and practices are based on these tensions. In fact, he argues, “The legal regulation and adjudication of religion” relies on these tensions as it provides law-makers with the opportunity to situate themselves on the spectrum of the promotion of ‘secularity’ or ‘religion’.

As a result of this, attempts to regulate or depoliticize religion by the ‘neutral’ legal system have been largely unsuccessful. What Årsheim terms “the dichotomy of legality” attempts to replace “the vagueness and fuzziness inherent to many religious traditions”, which often permeate the boundaries of religion and society, and this is what is happening with the debate over circumcision in Iceland. Amid this dichotomy of arguments in reaction to the ban, he notes that “Largely ignored in this discussion are the multiplicity of views from within, among the constituencies potentially affected by the proposal”.

He concludes, “As with any other religious practice, circumcision means different things to different people, the majority of whom are unlikely to have had any specific opinion about it at all – until it suddenly became a lightning rod, a stand-in for the boundaries between “good” and “bad” religion in Icelandic society”.

Amélie Barras, Assistant Professor in the Department of Social Sciences at York University in Canada, and Dia Dabby, Visiting Fellow at the Centre for Human Rights and Legal Pluralism at McGill University in Canada, also pick up on how the dichotomy in debate around this issue “leaves little space to consider the complexity of the issues involved”.

In response, they set aside the “either/or debate” and ask instead, “what is being produced and erased when male circumcision is designated solely as a “health matter”?” They argue that labelling it as such participates “in depoliticizing and de-historicizing a practice that has traditionally crossed religious lines with ease”. They continue, “Yet, if we approach the Icelandic bill not as an isolated proposal but as part of increasing attempts by “liberal” governments to “save” religious minorities from their “barbaric practices”, this context becomes more difficult to normatively ignore”. Understanding this context demonstrates how the ban is targeting and isolating racialized minorities as the far-right, Islamophobia, and anti-Semitism are on the rise in Europe.

‘Health discourse’ helps explain how the Icelandic ban is a manifestation of these efforts by ‘liberal’ governments. It explains that ‘health’ is constructed and linked to notions of progress and modernity, meaning that medical circumcision can be pitted against non-medical circumcision, the former of which is thus understood as acceptable, while the latter is understood as problematic because it is associated with “archaic” religious norms. Barras and Dabby note that the result is that “while health discourse works to render invisible the religious dimensions of the proposed bill, these dimensions nonetheless remain deeply entrenched in its structure”. Fundamentally, it works to ‘other’ the religious, and thus the bill “serves to (re)produce and (re)assert the superiority of “modern” medicine.

Barras and Dabby note that in the 19th and early 20th century in Europe, male circumcision was identified as a marker of modernity and upward mobility, encouraged by health practitioners. This understanding increased at the turn of the 20th century as male circumcision was pitted against female circumcision, which was seen as “archaic”. Yet, despite the fact that it was used to promote male circumcision as little as fifty years ago, health discourse is now being used to do the opposite. They note, “In neither instance, however, are the apolitical, ahistorical and “neutral” claims of health discourse questioned. In both instances, this discourse comes out as the champion of freedom, liberalism and modernity”.

Brian D. Earp, Associate Director of the Yale-Hastings Program in Ethics and Health Policy at Yale University in the USA, discusses how the debate around the ban will come down to a few key issues.

One of these issues is harm. Earp argues that there is more to assessing harm than weighing up the medical benefits versus the risks. In the case of the proposed ban, the (involuntary) loss of the foreskin is considered harmful. Earp suggests that, “Whether that harm is “worth” the alleged benefits (medical or otherwise) is a personal decision that should be left to the individual who will have to live with the consequences”.

The second issue is the question of unequal treatment based on sex or gender. Earp points out that the bill is not specific to male circumcision, “but rather is an adaptation of an existing law that prohibits non-therapeutic female genital cutting (FGC), simply changing the words “girls” to “children””. Like FGC, male genital cutting (MGC) exists “on a wide spectrum across cultural groups”, with different forms being more or less invasive than others. Some FGC is not as invasive as circumcision, and Earp appears to suggest that, considering Iceland’s ban on FGC despite its religious significance, banning circumcision would be logical.

Vebjørn L. Horsfjord, Associate Professor in the Department of Humanities at Inland Norway University of Applied Sciences, suggests that the banning of circumcision in Iceland would reignite debates on the issues in other Nordic countries. The debate on this is one that is “simmering” in countries like Denmark and Norway. If the issue does come back on the agenda, Horsfjord notes that the debate in these countries will be influenced by their strong Lutheran traditions, but also their tendencies “to score low on indictors of religious conviction and practice”.

His related research shows that, in Norway, conflicting arguments are weighed against one another indirectly, with those with clear views on the topic rarely engaging with the arguments of those opposing them. What exists instead of this debate, is a struggle about how to frame the issue – is it about child protection, or is it about religious freedom? Commentators on the issue rarely situate their argument in both frameworks.

However, there is another nuance to this debate, Horsfjord notes, and that concerns whether it is Jews or Muslims who are in focus. Despite the small number of Jews in Norway in comparison to Muslims, circumcision is five times more likely to be framed as a Jewish practice than a Muslim practice in national debate. Framing it as a Jewish practice correlates with a positive view on circumcision, while the opposite happens when it is framed as a Muslim practice. He notes, “This seems to give some support to those who suspect that initiatives to ban circumcision are aimed at the Muslim community, and that negative consequences for Jews are “collateral damage”.

But Horsfjord notes that half the newspaper texts on circumcision in Norway do not mention Judaism or Islam, and it is in these texts that the strongest anti-circumcision sentiments are expressed. He offers several possible explanations for this. Some authors may harbour anti-Semitic or anti-Muslim views (or both) but choose not to mention them. For others, and especially secular-protestant Norwegians, the tendency to relegate religion to the private sphere might mean that they do not even consider the need to mention religion in their articles.

Karin Berber Neutel, a Postdoctoral Fellow in the Faculty of Theology at the University of Oslo in Norway, argues that Gunnarsdóttir’s understanding of circumcision as not a “religious matter” makes sense given the Northern European tendency to view religion “as something freely chosen by adult individuals”, a category that child circumcision does not fit into. Neutel notes, “The dominant view in Nordic countries, dependent on the Lutheran tendency to equate religion with internal, private beliefs, leaves little room for “practice” or “belonging” as fundamental to religion”, and part of the opposition to the practice in Iceland can be seem to stem from this. According to this, the possibility of even one complication as a result of the practice is viewed as “unnecessary”, meaning the practice itself is not supported.

So, from the “Nordic” point-of-view, the pro-circumcision side of debate is empty. Therefore, any argument against it automatically tips the scales. The fact that a risk of complications may be worth taking for the significance of the action cannot be understood. Neutel comments, “The joint statement by the Nordic Ombudsmen for Children serves as an example. Since there are “no health-related reasons for circumcising young boys in the Nordic countries” – health apparently being the only possible reason that can be imagined – circumcision should not be performed before the boy is old enough to consent. Weighing something as foreign as the right to be circumcised on the eighth day, in accordance with Jewish tradition, appears an impossible feat”.

She adds, “If anything will tip the scale against a ban, it is likely to be the threat that such a measure would effectively ban Jews from Iceland. It seems increasingly possible, however, that a ban will be implemented at some point – and that a Nordic country will be the first to do so”.

Josephine Nielsen, a PhD candidate in the Department of Philosophy at Queen’s University in Canada, argues that because non-medical and non-religious infant male circumcision is going out of favour, circumcision, which is irreversible, will identify individuals for the rest of their lives as belonging to a community which they may choose one day to leave. She says that, “This, in a way, reduces the future autonomy of these infant males to decide how their bodies will be marked. Such an involuntary marking, I think, should be a concern for those of us in liberal societies who value personal autonomy”, and it should be questioned whether the wishes of parents should be seen as trump cards over this autonomy. She concludes, “While this topic should, of course, be open for discussion, we need to take the infant male children’s future autonomy into greater consideration than has been in the past”.

Atalia Omer, Associate Professor of Religion, Conflict and Peace Studies at the University of Notre Dame in the USA, writes that her main concern with the mobilisation against circumcision in Iceland Denmark “is that it generates an odor of Eurocentric, orientalist discourse, thereby inflicting moral injuries contrary to the supposed benevolence of protecting of protecting children and universalizing language it relies on”. This is the case regardless of how strongly the arguments for ‘public safety’ and ‘health’ are deployed by the opposition to circumcision. She adds, “The leveraging of health functions similarly to how freedom of speech and other apparently benign vocabularies and rights discourses are invoked by various stakeholders in “European values””.

Omer places the issue with the practice of circumcision in a broader sexual politics, rather than in a discourse of whether circumcision as a religious practice is right or wrong, as has been shown in the respective analyses of Judith Butler, Jaspir Puar, and Sara Farris. Discourse on health in this debate has been adopted by the opposition to circumcision “in the service of anti-Muslim populist sentiments”.

She adds, “What the recent fixation on circumcision does bring into a renewed clarity, however, is the intersection and interrelation between Islamophobia and antisemitism, as well as their rootedness in Europe as a set of discourses and practices. Targeting the practice of circumcision challenges the discursive effort to assimilate Jews, the former “other” of Europe, into a civilizational narrative that targets another “other””.

Nikia S. Robert, an ordained minister and PhD candidate at the Claremont School of Theology in the USA, writes that “From antiquity, the law has insidiously marked marginalized bodies with punishment, resulting in a discursive violence that targets the most vulnerable”. She raises the question of resilience in opposition to this marginalisation, asking “Is it ever morally right to violate unjust laws to survive?” In response, she argues that, in certain circumstances, there is moral licence to appeal to God’s law above that of the state’s, and thus “if the unjust ban on circumcision passes, I argue that resistance is merited to secure liberation using alternative and extralegal means. This is a counter-cultural act of resistance that is consonant with a tradition of civil disobedience advocated by political and religious leaders from Thoreau to Ghandi to King”.

Additionally, Robert links the proposed ban to an issue of race, not just politics or religion. This makes it “a perennial problem that implicates the world”, as “if the principle to police religious and racialized bodies is universalized, our liberties will be dangerously forfeited”. She identifies the proposed ban as another manifestation of the ‘cradle-to-prison-pipeline’, the phenomenon “in which punitive systems are designed to disproportionately criminalize black and brown bodies from birth by eliminating the resources, access and opportunities needed to survive”. In the same way, the proposed ban “will funnel vulnerable religious minorities to prison for practicing their God-given right to religious freedom”.

In addition to the resistance effort, which she says Muslims, Jews, and cultural proponents of circumcision must join, Robert says the international community must show international solidarity with those affected. She concludes, “let us stand in a tradition of resistance to appeal to a higher morality, to “enflesh” freedom in extralegal ways, and to live fiercely and faithfully while securing social flourishing – until the law loosens its stronghold on the body, and reaches toward liberation for all”.

Pamela Slotte, Associate Professor in Minority Studies at Åbo Akademi University and Vice Director of the Centre of Excellence in Law, Identity and European Narratives at the University of Helsinki in Finland, writes “There is something deceptively straightforward about the idea that we encounter the limits of freedom at the point when we are dealing with “harm””. The boundary between freedom and harm is presented as absolute in the Icelandic proposed ban on circumcision; “physical integrity and autonomous choice must take precedence over other concerns, regardless of how painful, pain free, large or small the surgical procedure in question turns out to be”.

She adds, “Thus, while the Convention on the Rights of the Child acknowledges both children’s own agency and their need for direction and guidance by adults – suggesting that a child gains independence as a full, rights-bearing subject, parents are key to exercising the rights of their children on their behalf – the proposed law would remove permanent physical alterations from the realm of parental responsibility”.

Thus, Slotte identifies references to ‘harm’ as attempts to “advance the juridification of religion”. However, “what constitutes “harm” is not straightforward”. She writes, “Even if one approaches circumcision as a purely physiological intervention, this is understood and articulated in different ways. It can be seen as “harmful” or, alternatively, as a ritual through which the child in question becomes part of a community in a covenant relationship with God, as in the case of Judaism”.

What is thus demonstrated through talking about ‘harm’ and seeking to regulate circumcision “suggest an unwillingness or inability to acknowledge other understandings of what is taking place”. She concludes, “Alternative approaches, in which the ritual is contextualised in such a way that it has foundational importance, might resist the dichotomy of “harmful” and “harmless”. Talking exclusively in terms of “harm” can only flatten the discussion”.

Muhammad Velji, a PhD candidate in the Department of Philosophy at McGill University in Canada, writes that Gunnarsdóttir’s comment that, “We are talking about children’s rights, not about freedom of belief. Everyone has the right to believe in what they want, but the rights of children come above the right to belief”, “highlights two key misunderstandings in this controversy”.

The first misunderstanding is “about the nature of non-Protestant religious belief”. Gunnarsdóttir understanding of “belief” is a “Protestantized” understanding of the concept. Thus, she considers it inner, private, and psychological. Veji writes, “From this perspective, belief is inviolable; the government can’t go inside your head and force you to believe circumcision is wrong. By this logic, banning a manifestation of religion is not violating a right to believe”. But this is not what belief means in Islam and Judaism. Faith is a verb in Islam, Velji notes.

Velji points out that the debate around the proposed ban is centred on the idea that it does harm to a child. Yet by this logic, he notes, other practices like letting children train for gymnastics and soccer should also be banned, as they have been shown to have the potential to cause harm to children. Practices like this, however, are considered to offer a more “open future” because they build capacities for later life. He writes that the same may be true for circumcision: “For Muslim parents, belief cannot just be switched on through an act of will at the age of eighteen. It is a capacity one gains through training in the right habits over time. Circumcision inaugurates their sons into the community, allowing them to have the capacity “to believe what they want”. Seen in this light, a ban on circumcision closes, rather than expands, Muslim and Jewish children’s right to an open future”.

Isaac Weiner, Associate Professor in the Department of Comparative Studies at Ohio State University in the USA, describes Iceland’s proposed ban on circumcision as “an ostensibly neutral measure that would disproportionately burden the country’s minority Muslim (and Jewish) communities”. However, he notes “it is worth considering what the bill’s advocates mean when they insist that it is not “against religion””.

One sponsor of the ban cites the United Nations Convention on the Rights of the Child, which “states that children who are capable of forming their own views have the right to ‘express those views freely’”, suggesting that banning circumcision of children promotes religious freedom, rather than oppressing it. Religion is conceptualised in this discourse as “essentially a collection of freely chosen beliefs or “views.” These beliefs may be expressed through external practices or symbols, but it is the choice of what to believe that is prior and preeminent”. The rights of the child and the rights of the parent are also pitted against one another in the discourse. Wiener notes, “it is the right to choose that it ultimately what is protected by guarantees of religious freedom”.

He observes, “Such a conception fails to account for the ways that practices like circumcision might be interpreted as fundamentally constitutive of religious commitment and identity, rather than merely an “expression” of it … By treating bodily practices like circumcision as secondary and thus peripheral to what really matters, Iceland’s bill adopts a neutral, evenhanded approach to regulating religion that conceals the historically contingent and contested notion of religion on which is relies. The logic of Iceland’s proposed bill is in fact a secular logic that underlies much modern governance of religion, one that hides its own particular religious genealogy”.

Social Share Toolbar

Sources

McIvor, M. (ed.) (2018) ‘Circumscribing the Body Politic: Circumcision, Religious Freedom and Identity in Europe’. [online] 29 March. https://religionfactor.net/2018/03/29/circumscribing-the-body-politic-circumcision-religious-freedom-and-identity-in-europe/. [Accessed 21 April 2018].