Wednesday, 18 March 2015

Are clitoral piercings illegal? Probably not.

The Standard ran a story claiming that vulvic piercings might be illegal in England because of new regulations brought in. Is this true? Probably not.

This original piece certainly doesn’t seem to have all its facts right. The first paragraph talks about “new NHS rules to be introduced next month”, and helpfully doesn’t give a link to the regulations in question. But what this seems to be is described at an NHS England page as a new requirement “since September 2014”. It says
all acute trusts are required to provide a monthly report to the Department of Health on the number of patients who have had FGM or who have a family history of FGM. This information will be anonymous and no personal confidential data will be shared as a result of the information collection.
The statistics are divided into four categories, as promulgated by the WHO: three numbered types for specifics procedures, and then a catch-all “other” category 4, which includes
Other: all other harmful procedures to the female [sic] genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.
You’ll notice nearly exact same wording at the NHS’s site. These statistics are collated monthly and the returns from the first month (September 2014) have already been published, so why exactly this is being presented as a new story is puzzling. It’s probably not a good idea if this has ended up including genuinely consensual piercings, but the NHS does collect lots of statistics about perfectly legal things.

But the Standard story then goes on to say
It means that each of the [people] will also be classed as a potential crime victim and that those responsible for carrying out the piercing could be deemed guilty of an offence under legislation banning FGM.
This is where it definitely overreaches. Internal rules at the NHS mean squat in terms of criminal law. The operative legislation here is the Female Genital Mutilation Act 2003, and what matters here is what it says, and how that is likely to be interpreted by the courts. There’s not been a lot of case law here - in fact, there has only been one prosecution under the Act, and that was for one of the numbered procedures, infibulation. So what matters is what this means, in section 1.1 of the act.
A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris.
I don’t think a piercing is a mutilation.  I find it very difficult to believe that a court would either.  Of course, the CPS are hardly trustworthy in that respect, and this is sufficiently ambiguous that it needs be clarified, but (a) nothing seems to have changed recently in the law and (b) piercers still seem to be happy to do this, right?

Note, although the Act uses the term "girl" here, a definitions section clarifies that "girl includes woman", so yes, there is no age limit here.  I have no idea whether it would include what sets of trans people, the legal system only having a limited conception of trans at all, and none of non-binary.

In terms of trans-related stuff, section 2 excludes
a surgical operation [...] which is necessary for [...] physical or mental health,
So it appears that genital piercings to reduce dysphoria are OK even if they were banned in the general case.  This also appears to specifically allow SRS procedures that would otherwise be included in one of the three main types.

There's also the issue of whether or not piercings constitute Actual or Grievous Bodily Harm, which the Spanner case held it was impossible to consent to.   Yet we would assume that piercings in general are legal, so fuck knows how that works.  It's almost as if Spanner was bad law that completely ignores that there's lots of things that would ordinarily be assault you can consent to, because they were feeling a bit homophobic/icky about the particular details.]