Introduction

Richard Shweder (2022) usefully draws attention to a number of aspects of the situation in the UK that I will develop. As female genital mutilation (FGM) is also politically partisan, some uncontested and worrying anomalies have ensued here. These include that specific adult women from FGM-heritage countries are legally discriminated against and infantilised. They are defined as minors in regard to genital surgeries carried out as a cultural practice and done as a form of ritual, tradition or custom.

Meanwhile, female genital cosmetic surgeries (FGCSs) have grown in popularity among women and teens, who are now also choosing to undergo them for cultural reasons. Race appears to be the prism through which this defining distinction is made. Nor is it acknowledged that the few new instances of ‘FGM’ being reported in under-18s are cosmetic genital piercings, mainly in Caucasian teens. UK children are also unequally protected by the law because only female circumcision is outlawed.

The criminalisation of FGM and the success of anti-FGM campaigns have resulted in major problems for specific people and communities, but have helped ensure discriminatory anomalies remain uncontested while such principles as patient confidentiality are undermined. I believe the best solution would be to decriminalise FGM, and the associated systems need an objective and thorough review.

I recognise that ‘FGM’ is a loaded and pejorative term (for a discussion, see Duivenbode and Padela, 2019), but for the sake of consistency, I will use it here. The National Health Service (NHS, 2019a) in the UK describes it as ‘a procedure where the female genitals are deliberately cut, injured or changed, but there’s no medical reason for this to be done’.

Discriminatory FGM laws criminalise and infantilise specific women

British female circumcision laws were designed to treat specific girls and women who have had, or might want, genital surgeries as a form of custom or ritual differently to others. A similar law does not apply to men and boys. This discrimination was sanctioned with the Prohibition of Female Circumcision Act 1985, and revised in the Female Genital Mutilation Act 2003.¹

This law criminalises anyone who ‘excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris’ for cultural reasons, that is, unless the procedure is considered necessary for her physical or mental health, or involves a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth. It is noteworthy that women are not mentioned in the legal wording, only girls are. That is because, in Section 6(1) of the 2003 Act, we are advised that ‘girl’ includes ‘woman’ (see also Crown Prosecution Service, 2019). Specific females over the age of 18 are therefore legally considered minors and permanently infantilised. I will refer to them as ‘girls’ from now on. This infantilisation denies women bodily autonomy and renders them incapable of ever giving informed consent to genital surgeries if considered ‘a matter of custom or ritual’. The perceived intention of ‘girls’ in regard to the surgery, usually identified by health professionals, becomes the determining factor. On that basis, these ‘girls’ may be denied the bodily autonomy legally afforded to other adult females.

When drafted in the 1980s, it is likely that the law referred to ‘girls’ originating from African countries where authorities believed FGM was practised. Now, it includes women from any part of the world where FGM, however defined, may still be practised. A map depicts those countries (see National FGM Centre, 2021a).

To further illustrate how discriminatory and undermining of agency this law is, some women may be considered even less competent than teenagers assessed as Gillick competent (Care Quality Commission, 2021). Competence in this regard means the level of understanding a young person should have of a treatment before being able to legally consent to it without parental permission. This is currently a live discussion in the UK in regard to COVID-19 vaccinations (Adams, 2021) and puberty blockers (Thornton, 2021) for young teenagers. It appears that some are allowed to exercise more bodily autonomy than ‘girls’ are.

This legal discrimination in regard to FGM is rarely acknowledged or discussed, with Dr Shahvisi (2017) being a notable exception. Dr Shahvisi has suggested that the law’s intentions, either by ignorance or design, are ultimately marred with sexism and racism since the legislation devalues the consent capacities of racialised adult women. The outrage that my explanation about this aspect of the FGM law engendered among 60 Somali Cardiff women remains fresh in my memory (Hehir, 2019a).

To illustrate how this discrimination works in practice, I will use the example of re-infibulation (RI). This is a type of ‘cultural’ practice that a minority of African ‘girls’ living in the UK might choose, were this permitted.

RI

It is recognised that Somali communities living in Kenya (like those within the borders of Somalia) have practised infibulation (pharaonic circumcision) for centuries (Guyo et al, 2005). It is also known to be practiced in Sudan and Mali (Fawzia, 1982). But, like all types of FGM, it is now declining (Kandala et al, 2018). Infibulated girls grow up knowing only a smooth genital appearance, which becomes their norm and comes to inform their sense of self. They may believe that body orifices should be closed to ensure a smooth, clean look, and being open feels abnormal, loose and wide (Naz and Lindow, 2021). Some consequently find being left open after de-infibulation abnormal and aesthetically displeasing.

Infibulation involves cutting and appositioning the labia majora and/or the labia minora, creating a seal and leaving a reduced introitus for urine and menstrual fluid. De-infibulation reopens the introitus, usually to facilitate full sexual intercourse and/or a vaginal delivery. When the raw edges of the wounds are sutured again, reducing the introitus to a small opening, it is known as RI. As infibulation is legally defined as mutilation, RI is not permitted either (Royal College of Obstetrics and Gynaecology, 2015a), so these ‘girls’ are denied bodily autonomy.

A survey (Naz and Lindow, 2021) of obstetricians in Qatar about RI demonstrated that requests for it immediately after delivery remain common there. They reported Qatar’s obstetric population to be diverse with women coming from countries such as Sudan, Egypt, Ethiopia and Somalia. Reasons cited by women wanting RI varied from ‘being accustomed to their infibulated appearance all their adult life’ to ‘fear of marital disharmony/divorce’ if not performed. Surgeons particularly sensitive to the women’s needs considered it best to avoid one-sided decision-making by the patient or the surgeon. They recognised that outright refusal would not take into account the woman’s wishes, her view of her own body image and her marital relations. In the UK, infibulated women are mostly first seen in the NHS when pregnant, but the limitations of the FGM information system makes accurate data reporting of prevalence difficult. For example, the percentage of women and girls by number of three key variables with known values – FGM type, country where FGM was undertaken and age when FGM was undertaken – and reported between April 2015 and March 2021, ranged between 19 and 23 only (NHS Digital, 2021a: 39).

However, between April 2017 and March 2018 (20 RIs were reported by the NHS (NHS Digital, 2018: 25). All of the women/girls were from Africa – Somalia, Nigeria, The Gambia and Sudan. We can assume that these surgeries occurred outside of the UK; otherwise, prosecutions would almost certainly have ensued. A total of 50 RIs were reported between 2020 and 2021 (NHS Digital, 2021a: 22). In regard to these figures, low numbers are not precise because the values one to seven are rounded to five. All other values are rounded to the nearest five to avoid the possibility of patient identification. Moreover, only 53 per cent of all attendees had an FGM status recorded.

RI formed the basis for the sensational trial of a London-based doctor in 2015 (Hehir, 2015a). He was prosecuted for re-infibulating a mother following an emergency forceps delivery. Fortunately, his defence argued, successfully, that the surgery was necessary to stop her bleeding.

Following that landmark trial, the UK’s Royal College of Obstetricians and Gynaecologists (RCOG, 2015a) updated guidance, advising members of the lack of clinical justification for RI and that women should be informed that this should not be undertaken under any circumstances. This seems to suggest that clinicians should not take into consideration the physical or mental health needs of a woman seeking RI despite the fact that they were advised in the guidance that psychological sequelae can occur with all types of FGM (RCOG, 2015a: 14). Should legal considerations only hold sway?

Possibly sensitive to accusations of racism, the RCOG also advised members that all women, irrespective of their country of origin, should be asked about a history of FGM at their initial antenatal visit and the answer documented in their maternity record (RCOG, 2015a: 4). Midwives began to adopt this practice even before the RCOG did (Barking, Havering and Redbridge University Hospitals NHS Trust, 2012). Now, on the basis of a minority practice, it appears that all pregnant women seen in the NHS are being screened, possibly unnecessarily, in regard to FGM.

Safeguarding Leads was reminded in 2019 that RI is a criminal offence caught by the provisions of the FGM Act 2003. Health professionals are also encouraged to be alert to the potential safeguarding concerns that RI may pose, particularly if recent or if it had occurred since a child was born (Hehir, 2021). If the latter, they are advised that daughters may be at immediate risk of FGM, so safeguarding referrals should be considered.

However, this approach takes little account of the changes that have been wrought by settled communities, many now as opposed to FGM as health professionals and campaigners are. This was apparent when it was reported that migration results in broad opposition to FGM among concerned migrant groups in Western countries (Johnsdotter and Essén, 2016). Just because a mother underwent FGM as a child, it does not necessarily follow that she will automatically want it for her daughter.

FGCSs

I have illustrated that what is carried out as a cultural practice and done as a form of ritual, tradition or custom is termed ‘female genital mutilation’ and criminalised for specific ‘girls’. Conversely, as the incidence and severity of FGM declines worldwide (Kandala, 2018) or is increasingly being medicalised, as in, for example, Egypt (El-Gibaly et al, 2019), Kenya and Somalia (Kimani et al, 2020), and the Asia-Pacific (Dawson et al, 2019), similar genital surgeries on other women and teens, but carried out for health or cosmetic reasons to fit a new Western cultural ideal, are legal and have grown in popularity.

A rise in vulval dissatisfaction is evident among Western women and teens, and the prepubescent, hairless, Barbie look is becoming commonplace (Boddy, 2020: 2). This look is enhanced by labiaplasties, vaginal tucks and so on, collectively known as ‘female genital cosmetic surgeries’. Labiaplasty, which may involve trimming, reshaping, shortening, thinning and correcting the asymmetry of the labia tops the list (British Association of Aesthetic Plastic Surgeons, 2021). Clinics who perform FGCS use words like ‘smooth’, ‘tight’, ‘enhance’, ‘correct’, ‘beautify’ and ‘streamline’ to advertise their labiaplasty services. Readers will remember that infibulated women use similar words to explain why they prefer a closed to an open vulva, except for them, it is termed ‘female genital mutilation’.

By 2010, in the UK, the number of labial reduction procedures in the NHS had risen fivefold since 2005, with over 2,000 operations performed in 2010 (RCOG, 2015b). Between 2008 and 2012, 266 labial reduction operations were performed on girls under the age of 14 years in the NHS ‘for unknown reasons with unknown consequences’ (British Society for Paediatric and Adolescent Gynaecology, 2013).

More than 200 girls under 18 were reported to have had labiaplasty on the NHS during 2015–16, and more than 150 were under 15 (Mackenzie, 2017). These surgeries are now no longer recommended for under 18s, justified by the biological fact that the labia continue to develop beyond puberty into early adulthood (NHS, 2019b).

The American Society for Aesthetic Plastic Surgery (Boddy, 2020: 4) estimated that 4 per cent of labiaplasties were performed on juveniles. In this light, is it any surprise that Sudanese women, who have felt lectured to about the horror and illegality of FGM for years, were aghast by this apparent double standard (Body, 2020: 1)?

The increasing number of Western women over 18 undergoing surgeries similar to those done for cultural reasons remain untouched by the law. Indeed, the UK’s law that criminalises traditional FGM actually supports FGCSs by stipulating their legality in the event that a woman’s distress is ‘caused by the perception of abnormality; actual abnormality or pathology is not required’ (Boddy, 2020: 7).

This, however, begs a question: why are similar cultural practices legitimate for some but illegal for others? Perhaps, considering the attention that FGM has received in the UK during the past decade and the associated criminalisation (University of Bristol, 2019), it is unlikely that many ‘girls’ would attempt to test the law by seeking to have their genitals altered or cut, fearing the questioning they might be subjected to and the possible consequences. Like Shavisi (2017), I agree that the current legislation is in need of urgent revision.

Genital piercings being reported as FGM

An NHS report confirmed that 85 per cent of FGM cases undertaken in the UK were genital piercings (NHS Digital, 2019: 12). Some of the remaining 15 per cent might also have been, but the data were incomplete. In 2019, I reported that these piercings were being identified predominantly in pregnant, Caucasian teens, so were not classic FGM, but FGCSs (Hehir, 2019b). Although this exposé generated some media interest (Brooke, 2018), the NHS has not yet clarified this situation publicly. Instead, it now adds to FGM reports that piercings continue to be included because ‘in some communities girls are forced to have them’ (NHS Digital, 2021a: 45).

There are potentially major consequences for ‘girls’ aged under 18 presenting with FGM, as well as the registered practitioners identifying it, whether genital piercings or other genital procedures like pricking, cutting, scraping or burning, if considered to have been carried out as a form of ritual, tradition or custom. Since 2015, if a ‘girl’ discloses that she has undergone FGM or physical signs indicate that FGM has been carried out, registered professionals have a mandatory duty to report her to the police within a month and without obtaining consent if considered necessary. The consequences for communities, such as undermining trust, the generation of fear and damaging professional relationships, appear to be considered acceptable (Hehir, 2015b). Professionals failing to comply with the duty can be disciplined and ‘be dealt with in accordance with the existing performance procedures in place for each profession’ (Gov.uk, 2020: 11).

Distinguishing between commonly understood genital piercings and ‘other piercings’ is therefore critical in clinical practice. It places a heavy burden on health professionals to distinguish between those done for aesthetic and cultural reasons from those done on ‘girls’, and to act on the outcome.

This caused so much confusion that the Crown Prosecution Service was obliged to revise guidance as to what constitutes legitimate medical or therapeutic intervention as opposed to possible criminal activity. Consequently, adorning female genitalia with jewellery or other accessories purely for the purpose of personal decoration or in order to enhance the sensation of sexual contact ‘usually now no longer amounts to FGM’ (Crown Prosecution Service, 2019).

However, the NHS has not issued a statement clarifying that data previously reported as FGM should no longer be considered such, nor that it holds evidence of FGM being carried out in the UK, apart from the single (questionable) conviction (Berer, 2020). One can wonder why this good news is not being celebrated considering that the predicted FGM epidemic has not materialised either (Hehir, 2017).

Over the six-year period since the NHS started to collect data in April 2015, information in regard to 27,270 individual women and girls has been reported (NHS Digital, 2021a: 1). Yet, it was estimated that 137,000 women and girls who had migrated to England and Wales were living with the consequences of FGM, and there were approximately 60,000 girls aged 0–14 born in England and Wales to mothers who had undergone FGM (UK Parliament, 2020). If these figures were accurate, and considering the myriad of health problems ‘girls’ with FGM are said to experience, surely many more would have presented to the NHS during those six years (National FGM Centre, 2021b)?

Male circumcision

Although boys are not routinely circumcised in Britain (NHS, 2018), it nevertheless remains a common practice among some Jewish, Islamic and African communities. Furthermore, as appears to be the case worldwide, there is not a law against it in the UK either; rather, female circumcision only is illegal.

Shweder (2022) drew our attention to the importance that Khatna represents for the Dawoodi Bohra. Based on the following description of FGM types used by the NHS, it appears that many are less severe than is the foreskin removal of male circumcision. Yet, outrage is predominantly directed at FGM.

The NHS, which seems as politically partisan as Shweder (2022: 10) suggests the World Health Organisation (WHO) might be, lists four types of FGM:

• type I (clitoridectomy) – removing part or all of the clitoris;^[2]

• type II (excision) – removing part or all of the clitoris^[3] and the inner labia (the lips that surround the vagina), with or without removal of the labia majora (the larger outer lips);

• type III (infibulation) – narrowing the vaginal opening by creating a seal, formed by cutting and repositioning the labia;

• other harmful procedures to the female genitals, including pricking, piercing, cutting, scraping or burning the area. (NHS, 2019a)

Between April 20 and March 21, of the types of FGM stated and recorded in under 18s (approximately 60 per cent of attendees did not have this information documented), 600 had undergone type I, 385 type II and 55 type IV; only 350 (one third) had undergone type III, arguably the only type considered more severe than is male circumcision (NHS Digital, 2021a: 20). Most types of FGM identified in the NHS in under 18s appear to be less severe. As the NHS offers male therapeutic circumcision only, the number of newborn non-therapeutic circumcisions carried out in the UK is unknown. These are organised and carried out privately.

The consequences of criminalisation

While FGM has had considerable exposure over the past decade, the effect that the national focus on the practice has had on targeted people from FGM-heritage countries, or on descendants brought up in the UK, has raised concerns. Some journalists and media outlets have taken an intermittent interest and reported about the heavy-handedness of the authorities in this regard (Davies, 2017).

University of Bristol (2019) research illustrated how FGM safeguarding policies and interventions like airport interviews by agencies working with Operation Limelight (2021) exposed families to intrusive and traumatic questioning, leaving them feeling frightened, criminalised and stigmatised. Midwives and doctors were also reported to repeatedly quiz women about FGM instead of concentrating on parental concerns, for example, their children’s welfare. Somali’s felt specifically targeted, feeling portrayed as ‘cannibals’, ‘inhuman’ and ‘subhuman’ (Hehir, 2019b).

In response, Bristol’s Safeguarding Board promised to do better (BBC, 2019). As did Avon and Somerset Police, some of whom had become anti-FGM activists in Bristol. They later apologised, saying that they had listened to feedback and made changes (Hehir, 2019c).

Unfortunately, similar findings were reconfirmed two years later. A University of Huddersfield report illustrated the distress and mistrust that FGM safeguarding measures generate within African diaspora communities in Bristol, and potentially across the country (Abdelshahid et al, 2021). Sadly, not much was perceived to have changed in Bristol during the intervening years.

However, possibly informed and influenced by the narrative, NHS England (2016) reported that 65,000 girls aged 13 and under were at risk of FGM in the UK, many in London (Mayor of London Assembly, 2021). Moreover, convinced by persuasive, anecdotal accounts, the police continue to believe that FGM is practised in the UK; they merely lack the intelligence to identify and prevent it. In a new endeavour, together with the charity CrimeStoppers, they are encouraging men and teenagers within practising communities to anonymously report those carrying out FGM, lured by financial incentives (CrimeStoppers UK, 2021).

It is regrettable that services and campaigners continue to ignore front-line professionals like Creighton et al (2019), who suggested that the anti-FGM response was disproportionate and needed reconsidering. It was becoming apparent to them that FGM was being abandoned in the UK; therefore, they concluded that the pursuit of a prosecution was not the best strategic response because it came with too high social costs for innocent individuals and families.

Effect on trust and confidentiality

Trust and confidentiality are acknowledged cornerstones of healthcare consultations. Yet, since 2015, NHS professionals have been directed to collect and submit highly sensitive, non-anonymised, patient-identifiable data on every girl and woman with FGM who attends the service, for whatever reason. These data are centralised through an information sharing system to NHS Digital (2021b).

The obligation to collect this special category of data on women and girls who have had FGM or are at risk of it is based on legal directions from 2015 (NHS Digital, 2021c). The data are collected ‘to improve how the NHS supports them and plan the local NHS and other services needed now and in the future’ (NHS Digital, 2021c). However, unlike most people, who can withdraw their consent and opt out from having their confidential patient information shared for research and planning purposes, ‘consent is not the basis for processing FGM data’ (NHS Digital, 2021c). They cannot, for example, object to the data being processed or used. The obligation is justified by the needs and ‘management of health and social care systems’ (NHS Digital, 2021c). The data can then be kept for ‘8 years minimum from no longer required’ (NHS Digital, 2021c).

It is the responsibility of health professionals to explain to patients why and how these data are being collected. However, in practice, and with the best will in the world, some women may not be given the time needed to fully comprehend the extent or relevance of the process. Many may already be encountering barriers to accessing medical care because they are less well educated and/or not fluent in English. They may also fear being judged and so dare not ask questions or challenge health professionals. However, even if they did, the information would still be centralised.

Another discriminatory practice, leading to a possible breach of patient confidentiality became evident when health professionals were advised to include a family history of FGM within the child’s Personal Child Health Record, known as the ‘red book’ (Department of Health and NHS England, 2014). This is issued by the NHS to parents when a child is born. Through this, children may come to learn of their mothers’ personal and sensitive information. It would be understandable for parents to feel undermined and embarrassed when, from their point of view, there may be no reason for children to ever know this.

It is also considered important that all young women should maintain a healthy body image (Bromley Safeguarding Children’s Partnership, 2019: 11) and that sensitive language is used to promote this aim. However, in regard to FGM, exceptions are made. Derogatory and demeaning language is commonplace and even used in some schools, for example, ‘mutilated’, ‘sliced’ and ‘deliberately cut’ (Norbury School, 2016). The video by Norbury School (2016) containing this language has even been sanctioned by the UK Home Office (Gov.uk, 2021).

Women may also worry about how their genitals look, fearing that their partners may find them unattractive. Anecdotally, I have been told that some seek reassurance in this regard from sympathetic health professionals. Some will not have had the procedure or have had a minor form only, but have assumed that because of where they were born, and the inordinate attention that the topic has received, they too might have been ‘mutilated’.

Conclusion

The FGM Act, which infantilises, racialises and discriminates against ‘girls’, needs urgent revision to ensure that all women have equal rights to bodily autonomy. If the same or similar cultural practices are permitted for some, why are they denied for others? The fairest solution would appear to be legislative reform and decriminalisation. The changes long perceived as necessary in ending FGM among immigrants from heritage countries seem to have already come about, voluntarily.

The NHS should acknowledge and publicly advise that one successful prosecution for FGM is a long way from the predicted epidemic and that the measures put in place to contain it may be unnecessary. A perusal of existing research might be a good place to start.

Conflict of interest

The author declares that there is no conflict of interest.