By Slowing Down the Senate, Pandemic Crisis Threatens a Historic Victory Against FGM in the U.S.

October 11, 2020

In 2018, the federal ban outlawing FGM was ruled unconstitutional. Ever since then, AHA Foundation, survivors, and other advocates have been hard at work in order to fix that law. Now, we’re the closest we’ve ever been.

When the federal ban against female genital mutilation (FGM) was ruled unconstitutional in 2018, the movement to end FGM in the U.S. was shaken to its core and left with one question—what do we do next? Since that day, AHA Foundation has been working to reaffirm the federal ban to ensure the thousands of girls whose protection had depended on that law would soon get it back. Now, we are only a few steps away. A bill clarifying the federal FGM ban was passed by the House of Representatives and awaits a vote by the Senate. To understand the work it took to get here, the challenges the ban faces, and how you can help pass it, we talked with AHA Foundation’s Senior Director Amanda Parker.

AHA Foundation: Let’s start with the last federal ban on FGM that was struck down in 2018. What was that day like for you? What was the reasoning for the judge to declare the ban unconstitutional?

Amanda Parker: Judge Friedman ruled that Congress did not have the authority to pass a federal ban against FGM because, he said, it is up to the states to regulate criminal behavior. The judge was not convinced by arguments that the Commerce Clause gave Congress the authority to ban FGM, saying that the practice is not a commerical activity.

….little girls from Michigan, Minnesota, and Illinois… had been robbed, and to this day continue to be robbed, of justice for what had happened to them.

When the decision was announced, I remember feeling incredibly shocked and really just heartbroken. My immediate thought was that the judge’s decision was wrong, and that he clearly did not understand the practice of FGM, a transactional, commercial service that is sought out by families. 

I also thought of the survivors involved in the case – little girls from Michigan, Minnesota, and Illinois – and was gutted to consider that they had been robbed, and to this day continue to be robbed, of justice for what had happened to them. At the time of the ruling, there were 23 states that had yet to ban FGM, and I knew that girls in those states remained vulnerable to being cut because of the ill-informed decision made in this case. The realization of what had just happened was overwhelming and incredibly sad.

Survivors reached out to me, after the ruling, in fear that their families would move forward with plans to cut their daughters because they had heard that the law had been ruled unconstitutional

AHA Foundation: What are the dangers associated with the FGM federal law existing in limbo for 23 months now?

Amanda Parker: One very real danger that came from the ruling was the message that the U.S. government is not serious about protecting girls from this abuse, and that perpetrators could practice FGM here without being prosecuted. 

Although the law technically remained valid for most of the United States, it was definitely not a certainty that a federal prosecutor would be willing to charge a perpetrator following the judge’s decision. Survivors reached out to me, after the ruling, in fear that their families would move forward with plans to cut their daughters because they had heard that the law had been ruled unconstitutional, which to them had sounded like a stamp of approval for performing FGM.

AHA Foundation: Starting from that day, what did the road ahead look like for AHA Foundation and its supporters, other nonprofits, and survivors working together to help establish a ban that would clarify the constitutionality of the federal law against FGM? 

Amanda Parker: Sometimes your only option is to get to work. And just like any other task that seems insurmountable, you start by taking one step forward – you make a call, you send an email, and you start to do what you know needs to get done. 

Knowing that courageous survivors, like-minded organizations, dedicated legislators, and their staffers were all putting in the necessary work to see this happen made it seem less daunting.

AHA Foundation: How did you personally overcome the demoralization of having to start at square one – reaffirming the federal FGM ban? Where did you find inspiration and strength?

Amanda Parker: Hearing the fear in survivors’ voices when they told me this ruling left girls in their communities more vulnerable than they previously had been was an incredibly strong motivator for me. Working side-by-side on this issue with them, and being witness to their strength in using their own pain to ensure the safety of others, humbles me and always pushes me forward.

AHA Foundation: Amidst everything that has been on Congress’ plate this year, how were AHA Foundation and other advocates able to get them to pick this bill up and vote on it? Between the COVID relief act and other time-sensitive issues, what have the past nine months looked like to get this bill through? 

Amanda Parker: Thankfully, there was never any doubt that this was an issue legislators planned to take on. Very shortly following the ruling, leaders on this issue from both sides of the aisle and in both the House and Senate got to work thinking about the best “fix” for the federal law criminalizing FGM. 

Prior to the declaration that we were all facing a pandemic, bills had been introduced in both the Senate and the House that would clearly state the fact that Congress has the authority to ban FGM under the Commerce Clause. These efforts were understandably sidelined when the U.S. shifted its attention to the pandemic, but as we approach the final days of the year and of this Congress, I think legislators are realizing that they have limited time to complete the work they set out to accomplish this session and are motivated to act. Hearing from AHA Foundation and other advocates that this remains a priority for us has also helped restart momentum.

Passing this bill would send a strong message to families considering cutting their girls that this human rights violation is not acceptable in the U.S.

AHA Foundation: If it passes in the Senate, how will this bill ensure the federal anti-FGM law can help protect thousands of girls from FGM in the U.S.? 

Passing this bill would send a strong message to families considering cutting their girls that this human rights violation is not acceptable in the U.S. Additionally, there are 11 states, along with the District of Columbia, that have not yet banned FGM. This bill would ensure that not a single girl in the U.S. lives in a place that has not explicitly outlawed the practice.

The STOP FGM Act of 2020 also goes further than simply banning the practice. It strengthens the federal definition of FGM to make sure that no girls fall through the cracks and makes clear that FGM in any form is a violation of the rights of women and girls. It increases the penalty for FGM from five years imprisonment to 10 years. And it asks federal agencies to report on their efforts to address the practice in the U.S., highlighting the need for government action to end FGM.

AHA Foundation: This bill was passed by the House of Representatives on September 21, but still awaits a Senate vote. What do the next steps look like in order to get the vote to happen? 

Amanda Parker: HR 6100 passed the House using a process called “suspension of the rules” which is used to speed up the passage of non-controversial bills that have bipartisan support. That’s good news for its potential to pass moving forward. 

In 2019, Senator Marsha Blackburn of Tennessee and others introduced a similar bill in the Senate that would also clarify the federal FGM ban. It is a strong bill, but it does not include the additional provisions the House bill does. It also awaits a hearing with the Senate Judiciary Committee.

So now, the Senate Judiciary Committee must consider both bills and decide the best route to (hopefully!) move forward. If they pass the House version, HR 6100, it will likely be the faster route with fewer steps. If they decide to pass the Senate version, S 2017, it will need to go to the House for consideration, where they would likely amend it to match the provisions included in HR 6100, and then it would go back for agreement in the Senate. Provided one of the bills passes in both the House and Senate, it would then go to the president for his signature.

How you can help pass the STOP FGM Act of 2020

AHA Foundation: There’s a lot going on right now involving the Senate. Three senators have tested positive for COVID-19, there’s a Supreme Court nomination looming as well as an election in less than a month. How might these things stand in the way of getting this bill passed? Are there any other concerns?

Amanda Parker: My hope has been that the upcoming hearings for Amy Coney Barrett and the election would both spur the Senate Judiciary Committee to act quickly to pass a bill that would reaffirm the federal FGM ban. We know the Senate Judiciary Committee is about to get very busy conducting the hearings, and it would have been great to get this bill out the door prior to the start of those hearings. 

As far as the election goes, protecting women and girls from gender-based violence is not controversial and the federal FGM ban has wide, bipartisan support. I would think senators who are facing an upcoming fight for their own seats could want to pass this legislation to highlight their success in protecting the rights of girls.

Now on to the question of how the diagnosis of three senators with COVID-19 could impact this situation. First and foremost, let me say that we wish those senators and everyone else impacted by this illness a speedy and thorough recovery. Next, I will say that the suspension of activity by the Senate for two weeks has thrown my prediction of when progress might be made with the federal FGM ban into question. It’s a rapidly-developing situation and I am trying to learn from Senate offices how they see this playing out given the new scenario we all face. For now, it seems that progress may have to wait until after the Supreme Court nominee hearings.

If this bill, and the Senate version, both fail to pass…it would leave more than 38,000 women and girls at risk of FGM.

AHA Foundation: If the bill died on the Senate floor or the bill is not picked up at all this year, what would that outcome mean for the girls at risk of FGM in the U.S.? What would the future look like in reaffirming the federal FGM ban? 

Amanda Parker: If this bill, and the Senate version, both fail to pass—despite broad support from both parties in both the House and the Senate—it would leave more than 38,000 women and girls at risk of FGM. They live in 11 states and the District of Columbia that have not yet criminalized the practice. These states could also become destination states where girls are trafficked in order to be cut. 

But I know I speak not just for myself but for countless others too when I say that if the outcome this year is not positive, we will not stop until there is a federal FGM ban we can rely upon and that every single state in the U.S. has its own comprehensive anti-FGM legislation on the books.

AHA Foundation: What can our supporters do to help make sure this bill is passed?

Amanda Parker: I encourage each of you to call or write to your senators to tell them the federal FGM ban is important to you, and that they should act to pass it without delay. If you live in a state that hasn’t outlawed FGM, reach out to your state legislators to urge them to pass comprehensive anti-FGM legislation in your state too. 

Your voice matters! I’ve heard time and again how much it means for legislators to hear from their constituents. Reach out to your senator and let them know you want to see this bill passed. The fight to end FGM in the U.S. may seem overwhelming, but each of us can take small steps that help get us there. Together, we can do this.

AHA Foundation: Thank you Amanda for taking the time to speak with us, and best of luck in the coming weeks.

Amanda Parker: Of course!