A close look at the German and Australian anti-FGM framework-concerns about equal protection and equal application

Abstract

Estimates suggest that on a global scale more than 200 million females are living with Female Genital Mutilation (‘FGM’). During FGM, female genital organs are altered or injured to varying degrees without a medical purpose. While the practice mostly affects girls and women in some African, Asian and Middle-Eastern countries, cases of FGM have also been reported in Western states, including Germany and Australia. Both are states which have recently seen an increase in immigration, including from countries where FGM is traditionally practiced. In the international context, the issue is consistently discussed as a human rights violation and states are called upon to ensure that the relevant practices are criminalised. Over past decades, an increasing number of Western and African countries, including Germany and Australia, have responded to this phenomenon by enacting additional criminal laws specifically addressing the act of FGM.<br/ >This article first provides a brief introduction to the issue including how the World Health Organisation (‘WHO’) defines FGM and how the debate on FGM is framed in the international context. It subsequently analyses the anti-FGM laws introduced in Germany and Australia identifying similarities and differences. The analysis informs subsequent debate on whether the laws could be discriminatory in nature or applied arbitrarily based on two considerations. Firstly, the laws aim to protect migrant girls from harmful traditional practices and therefore exclusively focus on female genitals. This could be discrimination based on sex if male circumcision of infants and boys is a comparable practice and male and female procedures are treated differently without legitimate justification. Secondly, while the wording of the criminal laws suggests that they apply to all alterations of female genitals without a medical purpose, in practice, in both countries, they have been interpreted to only relate to traditional procedures excluding female genital cosmetic surgeries and genital piercings, performed with increasing popularity in the West. The article concludes that the legitimacy of the anti-FGM framework is doubtful in Germany and Australia based on these considerations and analyses avenues suggested to overcome these inconsistencies. It concludes that while some of the suggested approaches result in less protection for children too young to consent and are therefore undesirable, others are unlikely to find support in practice in Germany and Australia due to ‘pragmatic’ and political reasons as well as international pressure. This creates the problematic situation that the current anti-FGM framework will continue to operate in the two countries. The article closes by questioning whether governments can expect compliance with arbitrary criminal laws and relatedly whether these laws can have the desired impact on those who they are trying to protect in practice – girls with migrant backgrounds.<br/ >