Suit claims N.D. genital mutilation law biased
By Patrick Springer
The Forum [Fargo, ND--Friday June 7th, 1996]

[SideBar] {What's at issue?
The lawsuit argues females are solely protected "without any rational basis
for this gender discrimination." Opponents of circumcision equate it with
female genital mutilation.}

When Kevin and Donna Fishbeck had a son last year they faced a decision
parents of male infants routinely confront in America: whether doctors
should circumcise their newborn.

The couple from Mandan, N.D., were divided. Kevin wanted Jonathan to be
circumcised; Donna did not. Their physician followed Kevin's wishes.

Now Donna and her infant son are among a group of plaintiffs challenging
North Dakota's law prohibiting female genital mutilation and arguing male
children should be granted the same legal protection from routine
circumcision .

A lawsuit will be filed today in U.S. District Court in Fargo asking that
the North Dakota Female Genital Mutilation Law, passed last year, be
declared unconstitutional.

The lawsuit is believed to be the first of its kind in the nation and is
expected to draw national and international attention, while providing a
legal forum in which the practice can be debated.

"Our position is that the medical community should not be doing routine
surgery on otherwise healthy genital tissue without medical indication,
says Zenas Baer, a lawyer from Hawley, Minn., who represents the
plaintiffs.

Removal of the male's foreskin -- an age-old practice common in America but
rare in most western, industrialized countries -- has come under increasing
attack in recent years by opponents who argue there is no medical basis for
the procedure.

The long-standing controversy surrounding male circumcision has been given
added attention recently with the spate of new laws protecting females from
genital mutilation. North Dakota was the first state to outlaw female
mutilation; Minnesota passed a similar law and last month the U.S. Senate
acted.

Opponents of routine circumcision say male circumcision is equivalent to
female mutilation with cultural tradition being the only difference. Most
Americans regard female genital mutilation as barbaric, while most give
little thought to [male] circumcision.

"The reason is because we are immune to our own cultural traditions," says
Jody McLaughlin, an active circumcision opponent from Minot and a plaintiff
in the lawsuit. "The Europeans say that we're barbarians for doing this."

Figures indicate 60 percent of male newborns are circumcised in the United
States, or more than 1.25 million annually, at a cost of $250 million,
according to one estimate. As recently as 1980, about 90 percent had the
procedure. The lawsuit estimates the incidence of circumcision in North
Dakota at 80 percent to 90 percent.

Jewish and Islamic males around the world are circumcised, but the practice
is uncommon in most western countries: 20 percent in Canada, 15 percent in
Australia, less than 1 percent in Denmark, according to the lawsuit.

Routine circumcision gained prominence in the United States in the late
1800s to curb masturbation, and was credited with helping to prevent
numerous illnesses, including mental illness and tuberculosis.

Proponents today argue the practice helps prevent penile cancer, urinary
tract infections and various sexually transmitted diseases. Both sides cite
contradictory medical studies, and the pros and cons are debated among
medical professionals. The North Dakota Medical Association has not taken a
position on circumcision.

The lawsuit argues routine circumcision is done for cultural, not medical,
reasons. "Not only is it not necessary, it is harmfully McLaughlin says.
"It would be like someone telling you, you really don't need the tip of
your tongue. You don't need the taste buds."

During a circumcision, 30 percent to 50 percent or more of the sensitive
foreskin is removed, diminishing sensation in mature males. Female genital
mutilation is performed in some cultures to promote chastity of young women
and to discourage married women from straying from their husbands.

"The fundamental reason for this is to diminish sexuality, "says plaintiff
Duane Voskuil of Bismarck, who equates male circumcision with female
genital mutilation. "It's a controlling thing [when done to females]. It's
the same kind of reason for males."

McLaughlin says: "Physicians say they're doing this because parents request
it. The parents say they do it because the physicians recommend it. If
anybody asks the babies, they say no by screaming."

The North Dakota law makes it a felony to "knowingly separate or surgically
alter normal, healthy, functioning genital tissue of a female minor."

McLaughlin, who pushed for the law and testified in its support, originally
sought a bill that was gender neutral, protecting male and female children
from genital mutilation. The bill was rewritten to exclude male
circumcision in order to overcome widespread opposition.

By protecting only females, the law violates the Fourteenth amendment's
equal protection clause, the plaintiffs contend They argue it also violates
the Fifth Amendment, because it allows for the permanent injury of a minor
male without due process.

The lawsuit does not seek to outlaw circumcision for adult males. Baer says
a court likely would grant exemptions for Jews and Muslims, whose religious
practices are protected under the First Amendment.

If successful the lawsuit might prompt legislation requiring a legal
guardian to look out for the interests of the child if his parents want the
infant to be circumcised, Baer says.

"This raises significant human rights issues he says. "Each individual
child is [legally] considered to be a human being that is to be free of
unnecessary punishment, the right to life, liberty and the pursuit of
happiness."