Published in Halsbury's Law Exchange here.
In San Francisco an attempt is presently being made to ban the practice of male circumcision. The movement has sparked a debate in this country, with Neil Howard and Rebecca Steinfeld arguing that it should be banned and Adam Wagner countering that a ban would amount to a disproportionate interference with freedom of religion.
In my view the key lies in the correct analysis of the issue.
Howard and Steinfeld make the point that female genital mutilation is banned and therefore, as an act of equality, male circumcision should be as well. The point is not so straightforward, because male and female genitalia, to state the extremely obvious, are not the same thing. Some more analysis is required.
Wagner approaches the question on the basis of the religious rights of the parents, which in legal terms are governed by art 9 of the European Convention on Human Rights. As set out in R (on the application of Bashir) v Independent Adjudicator and others  NLJ 812, the application of art 9 involves three questions:
(i) whether the claimant’s rights under art 9 are engaged;
(ii) if so, whether there has been an interference with those rights;
(iii) if so, whether the interference is one that is both prescribed by law or necessary in the interests of public order, health or morals, and proportionate to the end pursued.
There is little doubt that a ban on circumcision would produce an affirmative answer to the first two questions. Assuming that the ban derived from an Act of Parliament it would obviously be prescribed by law. The question would then be whether it was necessary in the interest of public health or morals, and proportionate to that end.
Wagner argues that the answer is no: he does not accept that the medical evidence conclusively establishes that a ban is justified on health grounds. That being so, there would also be scope for disagreement as to whether the ban was proportionate, because circumcision is a firmly established tradition in several religions and a large number of adherents to those religions could be expected to react strongly to a ban.
Thus, on art 9 grounds, it is certainly arguable that parents should have the right to carry out the procedure.
In response I would argue that the art 9 analysis is inappropriate. This is because the religious rights of the parents are one thing, but of overriding importance are the rights of the child. The UN Convention on the Rights of the Child makes clear that the best interests of the children should be the overriding principle whenever children’s lives intersect with the law, and in my view that principle is indisputable.
The blunt fact is that circumcision not done on compelling medical grounds constitutes an assault. The onus is therefore on those wishing to carry out the procedure to show that it is nevertheless somehow in the child’s interest.
It is not possible to justify assaulting a child on the ground that the parents’ religion requires it – any more than the state should permit parents to withdraw female children from school on the ground that their culture or religion objects to girls becoming educated.
Imagine a strange cult that required children to be branded a la cattle farming with a red hot poker, or some other bizarre practice. No art 9 grounds would permit this. That circumcision might be seen as less extreme (or not) does not change the principle. Here is where the gender equality argument becomes relevant: the only difference between male and female circumcision is that the latter is banned because the harm is greater, but that is not a sufficient distinction – there is no “acceptable level of harm”.
One red herring needs to be dealt with. Smacking a child (controversial enough in itself) is an assault. But the argument in favour of doing so is that it is in the child’s interest to learn discipline. No comparable argument for circumcision exists other than medical grounds. It is not enough to say that it does not harm the child, it has to have a tangible positive benefit. If it does, then circumcision is indeed justifiable and I would abandon any objection.
The fact that male circumcision is a deeply held tradition that has lasted for thousands of years is relevant but not compelling. Slavery, sexism, blood sports and any number of other now banned and thoroughly discredited practices, cultures and beliefs could have been (and often were) defended on the same grounds.
Ultimately, practicing religion should be subject to the same standards as non-religious activities. There would be no acceptable justification for assaulting a child on secular grounds; religious practices should be held to the same standard.
One final point. See here for a superb judicial response to sexism in religion in the present context.