Rep. Maloney, Elected Officials, and Women’s Rights Advocates Condemn DOJ Decision to Not Defend Female Genital Mutilation Law and Call for Equal Rights Amendment

Apr 25, 2019
Press Release
An Equal Rights Amendment is Necessary to Make Clear Congress Can Enact Legislation to Protect Women from Human Rights Abuses and Discrimination

NEW YORK, NY — Today, Congresswoman Carolyn B. Maloney (NY-12) joined elected officials, and Equal Rights Amendment advocates to condemn a recent U.S. Department of Justice decision to not  defend a federal law banning FGM/C, to call for Speaker Pelosi to step in to defend the law, and call for the ratification of the Equal Rights Amendment (ERA). Congresswoman Maloney is the sponsor of H.J. Res. 35, a bill to restart the ratification process of the ERA.

While the Trump Administration has decided not to defend the 1996 law banning FGM/C, the House or the Senate could do so. Accordingly, Congresswoman Maloney wrote a letter today (full text below) to Speaker Nancy Pelosi to urge her to defend the law in the U.S. Court of Appeals.

In light of a federal district court in Michigan’s November 2018 ruling that Congress does not have the constitutional authority to criminalize FGM/C, the advocates today highlighted the need to ratify the ERA. Without this constitutional bedrock protecting women’s rights, courts can roll back the laws Congress passes.

“Female genital mutilation and cutting is a grotesque and extremely painful procedure that removes a portion of a woman’s sexual organs in order to exert control over her bodily integrity and sexual autonomy. The Trump Administration’s decision not to protect women and girls from this horrific practice illustrates not only its unwillingness to fight for women’s rights, but also exposes large loopholes in our Constitution that allow for women’s rights to be chipped away far too easily. Activists have been fighting the same battles for decades, and without the Equal Rights Amendment any progress we achieve can be rolled back. It’s time for the ERA to finally be ratified so that the rights of women can be protected, no matter who is in the White House, who sits on the bench, or who is in the majority in Congress or state capitols,” said Rep. Carolyn B. Maloney (NY-12).

“This decision, striking down the law against female genital mutilation, is a dramatic illustration of why we need the Equal Rights Amendment. We need to clarify to judges who have decided that violence against women is not covered by the Constitution that women need the protection of these laws they are striking down. Women were intentionally left out of the Constitution when it was written and it's time to fix that. This is a no-brainer,” said Jessica Neuwirth, Founder and Co-President of the ERA Coalition, Distinguished Lecturer and Rita E. Hauser Director of the Human Rights Program at the Roosevelt House Public Policy Institute at Hunter College, and Author of Equal Means Equal: Why the Time for an Equal Rights Amendment is Now.

“As a survivor of female genital mutilation, I am deeply disappointed by the decision of the Department of Justice. This outcome undermines decades of progress made by activists like me to end this harmful practice. It sends a negative message about the value of our bodies and experiences. The time to act is now—protecting women and girls rights must be a priority.  I applaud everyone breaking their silence because FGM affects all of us and it's a violation of human rights. Ending this practice requires collective action rooted in community education and strong policies. I know we can achieve a world without FGM so women and girls can live to their full potential” said Aissata M.B. Camara, Co-Founder, There Is No Limit Foundation.

“Female Genital mutilation it is a disgusting way to de-humanize and subject woman to pain and humiliation,” said Assemblywoman Nathalia Fernandez. “I am deeply disturbed to see the Department of Justice not challenge the decision a Michigan district court made, which legitimizes female genital mutilation at a federal level. This is frustrating and just another example of how this current administration does not value woman and are seeking to directly undermine their humanity.”

"Though we took action in New York to criminalize FGM, thousands are still at risk of being transported across state lines and overseas to undergo this human rights violation," said Assemblywoman Nily Rozic, Chair of the Office of State-Federation Relations. "The DOJ's decision not to defend the law banning the practice is yet another attempt by the Trump Administration to rollback protections for women and girls. The time to ratify the Equal Rights Amendment is long overdue in the face of threats to our progress as a nation."  

“The United States Department of Justice must reverse its disgraceful decision to decline appealing a Michigan federal court ruling that invalidates constitutional protections for minor female children from barbaric genital mutilation for non-medical reasons,” said Assembly Member Rebecca Seawright, “This ill-conceived action is further evidence of why the time is now to amend the federal and New York State constitutions and pass equal rights amendments that protect our children.”

“Female Genital Cutting, also known as Female Genital Mutilation, has been widely recognized as a violation of basic human rights, including the principles of equality and non-discrimination on the basis of sex. The recent DOJ decision not to defend the law which bans this practice is a step backwards for women’s rights. Last December I led a City Council oversight hearing on the extent and impacts of FGC in New York City, and we learned that 65,000 girls and women in the metro area are at risk. The DOJ’s decision will not stop the work we are doing in New York to assess the full scope of the issue and develop appropriate responses. Nor should we allow the decision to undermine the inalienable human right of women and girls to have 100% control over their own bodies,” said Council Member Helen Rosenthal, Chair of Committee on Women.

"FGM is a form of violence against women that is perpetrated to control the sexuality of women and girls. That the United States Department of Justice has declined to fight to uphold the federal ban on this form of child abuse is shameful. The rights and safety of women should not be left to the interpretations of individuals or changing attitudes; instead, the equality of women should be stated clearly in the Constitution,” said Amanda Parker, Senior Director of AHA Foundation.

“The recent decision by the district court judge in Michigan is a step back in the protection of girls against the harmful traditional practice of Female Genital Mutilation/Cutting. We call upon the DOJ and/or Congress to challenge this decision and uphold the federal law from 1996. We also call for all states to ratify the Equal Rights Amendment and finally bring the US in line with 179 countries of the world that in their constitutions offer women the same rights as men.” Jaana Rehnstrom, MD MPH President of the Kota Alliance and Representative from the New York Coalition to End FGM.

“From the shores of New York to Washington, D.C. and across the country, the powers-that-be are renegotiating the fundamental rights of women and girls. Eradicating female genital mutilation is non-negotiable. We have worked alongside FGM survivors for decades to ensure that U.S. federal and state laws protect girls from this devastating and harmful cultural practice. We’re not turning back; our responsibility as a nation to protect every woman and girl from violence and discrimination remains imperative,” said Taina Bien-Aimé, Executive Director of the Coalition Against Trafficking in Women.

“Simply put, FGM is a human rights violation. It's a form of gender-based violence and child abuse. The procedure can be fatal, and is always harmful. The decision by the DOJ to not appeal the decision in the Nagarwala case tacitly says that the federal government can’t pass laws to stop human rights violations. This is not true. Congress does have the authority to enact an FGM law. In fact, it is under international obligation to do so. Currently, 19 states do not have laws against FGM. In this very case girls were taken across state lines to be cut. This alarming lack of federal enforcement and gap in state laws is putting American women and girls at risk today,” said Kate Kelly, Program Officer of Women’s and Girl’s Rights at Equality Now.

Background

  • In 1996, Congress criminalized the practice of female genital mutilation (18 USC §116), which is recognized internationally as a violation of the human rights of women and girls.
  • The World Health Organization states that the procedure has no health benefits for girls and women and can cause severe bleeding and problems urinating, and later cysts, infections, as well as complications in childbirth and increased risk of newborn deaths.
  • In the first federal case (U.S. v. Nagarwala) brought under the FGM/C law, a Michigan federal district court judge overturned the law on the grounds that Congress lacked the authority to legislate in this area.  The judge rejected the idea that either the Commerce Clause or international treaties were sufficient to provide Congress jurisdiction. Last Friday, the U.S. Department of Justice announced that it would not defend the law.
  • 5 of the 9 victims in the case had been transported across state lines to undergo FGM/C.
  • More than 500,000 women and girls in the United States have undergone or are at risk of undergoing female genital mutilation according to the Center for Disease Control and Prevention.
  • More than 100,000 women and girls who live in the 19 states that lack laws banning FGM/C are at risk without the federal FGM law.
  • Just 15 states ban transporting a person across state lines for the purpose of undergoing FGM/C
  • Chairman Jerry Nadler announced this week that the House Judiciary Committee will hold the first Congressional hearing on the Equal Rights Amendment in more than three decades on April 30, moving us closer to ratification.

 

April 25, 2019

 

Hon. Nancy Pelosi

Speaker

U.S. House of Representatives

Washington, DC 20515

 

Dear Speaker Pelosi,

I write to respectfully urge you to consider taking action to defend the federal law passed by Congress in 1996 making the performance or facilitation of Female Genital Mutilation/Cutting (FGM/C) a federal crime.[1] A federal judge ruled in November 2018 that the law was unconstitutional, asserting that Congress did not have the authority to regulate this horrific practice.[2] After initially announcing its intention to appeal the court’s ruling, the U.S. Department of Justice reversed course and notified Congressional leaders earlier this month that it would not defend the law. I believe that the Department of Justice is misinterpreting Congressional intent and authority, and Congress must step in to defend this law if the Department of Justice refuses to do so.

As you know, FGM/C is a procedure that removes a portion of young girls’ sexual organs. According to the Centers for Disease Control and Prevention, more than 500,000 young women and girls in the United States have either been victims of FGM/C or are at risk of being cut.[3] It is rightly universally recognized as a human rights violation, and the United Nations Sustainable Development Goals targets include the global elimination of FGM/C. The procedure inflicts lifetime physical and psychological damage on victims and serves no legitimate medical purpose. There should be no doubt as to the U.S. government’s opposition to this practice and authority to prohibit it.

I find it deeply troubling that the Department of Justice has agreed with the federal judge’s ruling and decided not to defend a law that is so critical to the health and safety of hundreds of thousands of young women and girls. This is the first time that this law has been tested in court. The court asserted that since this was the first case brought under this statute, that the incidence of FGM/C is too low for it to necessitate regulation by Congress under the Commerce Clause. But the numbers of women and girls at risk are in the hundreds of thousands. Left unchallenged, this decision will have negative consequences in the future.

Young women who live in the 19 states that do not currently have criminal statutes outlawing FGM/C or the 35 states that do not prohibit transporting an individual across state lines for the purpose of undergoing FGM/C will be especially vulnerable to having this procedure performed on them by individuals who would face no punishment. Congress’s intent was to make FGM/C a federal crime in every state and we should make firm our commitment to the law that we passed. 

Left unchallenged, this case would remain as a limit on our ability to legislate on matters related to medical abuse of patients or other aspects of health care. It is a particularly problematic decision since 5 of the 9 victims in this case were transported across state lines to undergo the procedure. State laws are not sufficient protection -- there must be a national prohibition.

Thank you for considering action to defend Congress’s efforts to eliminate FGM/C in the U.S. This fight must be won. I look forward to working with you to make sure that Congress will champion this critical law and the rights of all young women in our country, and take action to overturn this outrageous federal court decision.

Sincerely,                                             

CAROLYN B. MALONEY

Member of Congress 

 

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[1] 18 U.S. Code § 116 (1996)

[2] United States v. Jumana Nagarwala el al., No. 17-cr-20274 (E.D. Mich. Nov. 20, 2018)