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Thursday, May 26, 2011

"Storm" and Circumcision (and Palmore v. Sidoti)

Legal bloggers have written a good deal in the past few days about proposed initiatives in California to ban the practice of circumcision.  (Relevant links can be found in this CoOp post by Dave Hoffman.)  I'd like, perhaps slightly oddly, to link that discussion to this story.  It concerns a couple in Toronto that announced the birth of their child, Storm, but refused to announce the child's sex, as "a tribute to freedom and choice in place of limitation."  The parents argue that "parents make [too] many choices for their children," and that refusing to tell the world what the child's gender is, and refusing to impose on their children a set of strong expectations based on gender roles (their two sons, for instance, are free to pick clothes from the boys' or girls' section of the store), will allow their children to make their own choices.

In one sense the two stories are quite different: one is about a practice that is seen as imposed on one's child, and the other is described by the parents as being about the refusal to impose choices on their children.  But I think the stories are actually pretty similar.  As many commenters on the Storm story point out, Storm's parents have deliberately exposed their child to potential harm.  In his or her absolute freedom, Storm will also (so to speak) be buffeted by uncertainty, mockery, criticism, and even potential violence.  Storm's parents may believe Storm will be better off in the long run, but they are clearly not just thinking about Storm: they are using Storm to send a message to the world about their own hopes, dreams, and commitments, no matter the cost. 

In that sense, it seems to me that Storm's parents are actually in a pretty similar position to those parents who circumcise their children, not for medical reasons, but to demonstrate a religious commitment, even if that commitment is necessarily not yet the infant's choice.  Parents who circumcise their children for that reason (and I am one of them) are writing a message on their children's bodies.  They may believe the costs are small, but they know there are potential costs, and still refuse to leave the choice to the child later in life.  Storm's parents, similarly, are making a deliberate choice about Storm's upbringing, one whose unconventionality may expose Storm to genuine harm.  They know about these potential harms: Storm's brother, Jazz, says in an interview that he chose not to attend a conventional school because of questions about his gender, and that this decision upset him.  But they have chosen to act as they have with Storm nonetheless, as a "tribute to freedom and choice."  In other words, like parents who circumcise for religious reasons, they have chosen to use their child's life to send a message.  Storm's parents see themselves as making a strong statement about their child's autonomy.  But because they are making a statement, one that exposes their child to risks, they are also, like parents who circumcise, illustrating the ways in which parents may make choices that outweigh the child's autonomy.  It seems to me that, at least absent proof that circumcision will cause terrible harm to a child or proof that Storm will suffer no harm whatsoever -- that is, in circumstances in which both decisions carry potential but not certain and grave harm -- supporters of circumcision should also support Storm's parents' choice, and opponents of circumcision ought also to be critics of Storm's parents.

I also can't help but wonder what reaction both groups ought to have to a case like Palmore v. Sidoti, in which the Supreme Court held that a court could not decline to award custory of a child to the mother because the mother had remarried a person of a different race.  The trial court had believed that, given the biases of the community, the child would be "subject to environmental pressures not of choice," and that the child's best interests would therefore best be served by awarding custody to the father.  The Court held that "the reality of private biases and the possible injury they might inflict" must in this case be treated as irrelevant to the custody decision, lest the law "give [ ] effect" to those biases.  Surely there is an argument to be made that an opponent of circumcision, and/or a critic of Storm's parents, ought to be at least uneasy about Palmore.     

Posted by Paul Horwitz on May 26, 2011 at 01:51 PM in Paul Horwitz | Permalink


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What harms are you imagining will come to Storm that will be his parents' fault? Be specific, please.

Posted by: Andrew MacKie-Mason | Jun 6, 2011 7:40:03 PM

Andrew MacKie-Mason,I cannot decipher what you mean about Storm's parents forcing anyone to be inhumane toward their child. I am talking of the flaky nonsense of Storm's parents.

Posted by: Christy Walsh | Jun 6, 2011 5:43:05 PM

Christy Walsh, you would blame the parents for "forcing" other individuals to be inhumanw towards their child?

Posted by: Andrew MacKie-Mason | May 29, 2011 1:53:22 PM

Andrew MacKie-Mason, With all due respect but what planet are you living on? Parents have no right to mess their kids up with crazy notions to later protest their innocence by claiming "It's not our fault the rest of the world does not agree with us, otherwise you might have been a normal person." They are going on a solo run of their own at the expense of Storm's well being.

Posted by: Christy Walsh | May 27, 2011 7:47:01 PM

It makes no sense to hold Storm's parents responsible for the risk that other *autonomous agents* will cause the child harm because of it. Staking out that position is like claiming that those who might ostracize Storm have no control over their actions. Storm's parents have not caused him/her any harm, potential or otherwise: those potential intolerant people have.

Analogous "harm" in the circumcision case is the risk that women may be less attracted to a circumcised man. That "harm" is at the feet of those women, not the parents.

The actual harms that concern opponents of circumcision, though, are the direct result of the actions of the parents.

Posted by: Andrew MacKie-Mason | May 27, 2011 5:33:42 PM

I see circumcision as a pointless and, at best, archiac practice on males and, at worst, outright horrendous practice on females. However, I presume you are referring more to male rather than female circumcision. If that is so then I think the link you make between circumcision and the upbringing of the child Storm is flimsy. Male circumcision seems to make little traumatic impact on the future growth of the child to adulthood whereas the goofy parents of Storm are most likely going to psycologically screw their kid up for life. Other children may not relate to Storm's seemingly disregard to gender nuances nor would Storm understand their observance to certain social interactions and discretions. And then there are the various hazards you also refer to... the parents are just too flaky for Storm's own good and best interests.

Posted by: Christy Walsh | May 27, 2011 5:24:16 PM

Thanks for the interesting comments. I should make clear that I am not saying it is impossible or utterly unreasonable to stake out the kind of position R takes, nor am I saying that one need not condemn those who would harm Storm, or a child of a mixed-race marriage, even while taking those potential harms into account.

If one thinks permanent modification of one's child body is a wrong in and of itself, then certainly one can use that as a distinction between one set of actions (the circumcision and the tattoo) and others. Even so, one would have to justify that distinction with reasons. Without denying the possibility of others, I can think of two primary justifications. The first is that permanent body modification is an offense against the child's autonomy. But all kinds of actions, surgical or not, interfere with a child's autonomy. The second is that circumcision, regardless of questions of autonomy, is harmful. In many respects, that is what I focused on in my post, because it seems to me to be a central element of most criticisms of the circumcision of children (although most of those critics believe one of those harms is harm to autonomy). Few critics of circumcision, I think, believe it is terribly harmful; rather, they believe it has some likelihood of harm and little likelihood of good. If that's the kind of calculus you're engaging in, then I think it makes less difference whether the harm comes from the procedure itself, or from reactions on the part of others to something like the refusal to reveal one's child's gender; what makes the action wrong is the harm more than the source of the harm. And the point I am making is that both parents who circumcise and those who take actions like those of Storm's parents are unwilling to take the possibility of harm as the final word on what they can do to their child, while those who believe that harm to children is the primary evil to be avoided have less reason to distinguish between the two, or between those harms and the potential harm to the child in Palmore. As Mark says, we can disagree about degrees of harm or likelihood of harm. That's one reason I focused on areas where the harm is uncertain but unlikely to be definite and grave. My point is not to say it's impossible to take cross-cutting positions, but to suggest that a consistent approach to these questions reveals surprising areas of common ground in very different contexts.

Posted by: Paul Horwitz | May 27, 2011 9:40:44 AM

I realize through R's comments that probably the misunderstanding is mine -- one which depends on the distinction between supporting a choice (what I thought was being discussed) and supporting the right of parents to make a choice. That misunderstanding would knock out my first question.

Posted by: Marc DeGirolami | May 26, 2011 4:44:53 PM

Is part of the problem the permanence of the action on the child? When they turn 18, Storm can adopt whatever gender roles he/she wants and the child in Palmore can move far away from his or her mixed-race parents. But neither the circumcised nor tatooed child can undo the acts performed on them. I'm not sure message itself matters; I think it's consistent to oppose a parent's right to put racist tatoos on a child, but to support their right to make their kid wear clothes with racist slogans.

Posted by: R | May 26, 2011 3:44:36 PM

Paul, thanks for the (as always) interesting post. I hope you'll forgive two clarifying questions. You write: "absent proof that circumcision will cause terrible harm to a child or proof that Storm will suffer no harm whatsoever -- that is, in circumstances in which both decisions carry potential but not certain and grave harm -- supporters of circumcision should also support Storm's parents' choice, and opponents of circumcision ought also to be critics of Storm's parents."

I had two thoughts about this. First, the post assumes that potential future harm to the child is the sole criterion by which we would assess parents' decisions to express messages 'through' their child. But 'potential future harm' might not be the only measurement that one might want to use. That's a kind of consequentialist metric, and it's an important one, but another one might be the nature of the message itself, or the quality or history of the message, or its cultural status. If parents had chosen to tattoo their infant with racist slogans, I don't see why either parents who circumcise their children or Storm's parents should support that choice, even if the potential future harm of the tattooing is not certain, but only possible. Maybe one might say that the potential harms are less speculative in the tattooing case, but that doesn't seem to get at the principal reason that parents who circumcise should oppose the tattooing parents' decision.

Second, if one is solely focused on the question of potential future harm to the child, why couldn't one make allowances for degrees of potential future harm, or even the nature of the harm? Some choices are much more likely to be harmful to a child than others. Circumcision is not very likely at all to be as harmful as a decision to tattoo an infant with racist epithets. That we are using the same general metric in both cases need not mean that we cannot differentiate between them.

Posted by: Marc DeGirolami | May 26, 2011 3:13:13 PM

I disagree that an opponent of circumcision should also be a critic of Storm's parents and/or uneasy about Palmore. Why isn't it consistent to be critical of a parent who circumcises a child, critical of people who would mock or harm a child because that child doesn't adhere to traditional gender roles or has mixed-race parents, but be sympathetic to (even supportive of) the parents who created the gender role/mixed-race situation for the child? There seems to me to be something fundamentally different about the direct intentional body modification of circumcision by a parent and the creation of a situation that may lead to harm from others. I think one could consistently oppose circumcision but support a Jewish parent's right to require their child to dress and wear their hair in a traditional orthodox manner that may lead them to ridicule/violence from intolerant others.

Posted by: R | May 26, 2011 3:03:23 PM

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