FGM court case, Sydney Australia, 2016, DEAN LEWINS/AAP/PA Images. All rights reserved.

Doctors and lawyers in at least four countries have recently argued in court that bans on female genital mutilation (FGM) violate ‘religious freedom’.

Three of these cases – in India, the US and Australia – involved members of the Dawoodi Bohra community, a sect within Shia Islam with about a million followers, primarily in Gujarat, India and the diaspora.

Around 75% of girls in this community have experienced khafz – removing the ‘hood’ of the clitoris of seven-year-old girls – according to the survivor-led organisation WeSpeakOut.

The fourth case involves a doctor in Kenya who filed a petition last year to legalise FGM, claiming that her country’s 2011 ban breaches constitutional rights to “freedom of conscience, religion, belief and opinion”.

The cases come as rights advocates warn that freedom of belief claims are increasingly ‘weaponised’ against women’s and LGBT equality.

A small group of US and UK Christian right ‘legal advocacy’ organisations have supported dozens of cases using such arguments to defend opponents of abortion, contraception and same-sex marriage.

The FGM cases echo their arguments though there is no evidence of collaboration between those involved and these Christian right groups.

“FGM is a cultural, not religious, practice… deeply entrenched in the patriarchal need to control women's bodies and sexualities”

FGM, which involves cutting the genitalia of women or girls, is most common in parts of Africa but is also practised in Asia and the Middle East, and among members of some diaspora communities.

Several human rights bodies condemn FGM. Dozens of countries have passed specific laws against it, but there have been few convictions.

Religious leaders have also denounced FGM, including via fatwas from Somaliland’s ministry of religious affairs last year, and the Dar al-Ifta in Egypt.

Zainah Anwar, executive director of Musawah, a global Muslim women’s rights movement, told 50.50 that religious freedom arguments cannot be used since “FGM is a cultural, not religious, practice”.

“It has been proven to be harmful to women and girls”, she added, “and is therefore an un-Islamic practice” that is “deeply entrenched in the patriarchal need to control women's bodies and sexualities”.

Dawoodi Bohra women in mosque, London UK, 2009. Shaun Curry/PA Archive/PA Images. All rights reserved.

The ‘Religious freedom’ cases

In August 2018, a group called the Dawoodi Bohra Women’s Association for Religious Freedom (DBWRF) celebrated overturning Australia’s first FGM conviction against three community members in 2015.

A spokesperson said they “exercise their right to religious freedom by practicing khafz on their daughters”, while public opinion “is intent on denying women their right to practise their religious observance”.

In November, a US judge ruled that a law banning FGM was unconstitutional. This case involved members of the Dawoodi Bohra community in the northeastern city of Detroit, accused of ‘cutting’ nine girls.

The defence team of the accused doctor in this case, Jumana Nagarwala, also argued that her prosecution violated her religious freedom.

The judge dismissed the charges and said "Congress overstepped its bounds by legislating to prohibit [FGM]" – that this was an issue for states to regulate.

He dropped other charges against another doctor, two surgery assistants and four mothers who bought their daughters to the clinic. The US government is expected to appeal this decision this spring.

"Congress overstepped its bounds by legislating to prohibit [FGM]"

In an ongoing FGM court case in India, members of the Dawoodi Bohra community claim they face persecution for performing khafz.

There is no specific law against FGM in India, but the Attorney General said FGM is still a crime under other legislation and urged the Supreme Court last April to “step in and issue directions on the issue”.

Dawoodi Bohra lawyers claim their practice of khafz is “an essential aspect of Islam” that “cannot be subjected to judicial scrutiny”. They say it is protected under the constitution via religious freedom.

Judges pushed back, describing FGM as a violation of “the bodily integrity of a girl child”. But they have referred the case to another five-judge bench.

Masooma Ranalvi, founder of the WeSpeakOut survivors’ campaign, criticised this as “an attempt to re-frame the issue... to continue this discriminatory practice under the garb of religious freedom".

She said it seemed "clearly aimed at delaying the verdict in this case”.

“This is an attempt to re-frame the issue... to continue this discriminatory practice under the garb of religious freedom”

50.50 received no response to requests for DBWRF comment on the cases.

Recently, Samina Kaanchwala, DBWRF’s secretary, told The Hindu: “Khafz, as practiced by the Dawoodi Bohras, is very different from FGM”. She called it “a harmless religious practice” that “has been completely medicalised”.

Ranalvi, from WeSpeakOut, responded: “Saying khafz is not FGM is clearly an attempt to obfuscate the main issue. … The nature of the practice is offensive, oppressive, harmful and not religious at all”.

This month WeSpeakOut called for FGM to be an issue in Indian political parties’ campaigns for the upcoming 2019 elections.

"A lot of political parties talk about women's rights and saving the girl child. We want to ask them what is their take on FGM? Will they end it? Will they support a ban on it? If yes, they deserve our vote", they said.

"A lot of political parties talk about women's rights and saving the girl child. We want to ask them what is their take on FGM? Will they end it?"

Kenya’s FGM case is also ongoing and it’s unclear when it will come to trial.

A doctor filed a petition to Kenya’s High Court to legalise FGM claiming that under the ban women “are denied their inherent right and fundamental freedom of choice to pursue their cultural or religious destinies”.

In Europe, such religious freedom arguments do not appear to have been made in the countless FGM court cases filed so far.

In the UK, where a 2003 law imposes penalties of up to 14 years in prison for offenders, the fourth-ever FGM prosecution succeeded this month.

France’s experience contrasts with that of many other countries; while it has no specific FGM laws, about 100 people have been convicted under laws against grievous bodily harm and violence against children.