Challenge to FGM Law
No Basis for Excluding Males--District--Page 2
 

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Fishbeck vs. State of N.D.: Challenging the Constitutionality of  N.D.'s FGM Law
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHWESTERN DIVISION

Donna Fishbeck, Individually, and as Mother
and Natural Guardian of Her Infant Son, Jonathan Fishbeck;
Jody McLaughlin; and Duane Voskuil, Ph.D.,

Plaintiffs,

v.

The State of North Dakota

Defendant

Civil No. A1-96-64

PLAINTIFFS' BRIEF IN OPPOSITION TO MOTION TO DISMISS
AND/OR MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

TABLE OF AUTHORITIES

I. INTRODUCTION

II. FACTS

III. ARGUMENT

     A. Plaintiffs Have Standing

     B.   Plaintiffs State a Claim that Section 12.1-36­-01
Violates the Constitutional Guaranty of Equal Protection

1. Summary of Argument

2. Standards Applicable to the State's Motion

3. Legal Background of Equal Protection

4. Heightened Scrutiny is Applied to Gender Based Classifications

5. Analysis of Section 12.1-36-01 Under the Proper Legal Standards Compels Rejection of the State's Motion

6. Plaintiffs Amply Demonstrate a Genuine Issue of Material Fact as to Whether the Harm to Minor Males is Sufficiently Similar to the Harm to Minor Females to Run Afoul of Equal Protection

7. Because the Harm to Minor Males is Similar to the Harm to Minor Females, and Falls Plainly Within the Purpose of Section 12.1-36-01, Plaintiffs State a Claim that Failure to Similarly Protect Minor Males Violates Constitutional Guarantees of Equal Protection

     C.  Plaintiffs State a Claim that Section 12.1-36­-01 Violates the Equal Protection Guaranty of the North Dakota Constitution

IV. CONCLUSION

V. ORAL ARGUMENT REQUEST

TABLE OF AUTHORITIES

Cites:

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)

B.H. v. K.D., 506 NW 2d 368, 375-76 (N.D. 1993)

Baker v. Carr, 369 U.S. 186, 204 (1962)

Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872)

Califano v. Goldfarb, 430 U.S. 199 (1977)

Coleman v. Watt, 40 F. 3d 255, 258 (8th Cir. 1994)  

Convey v.Gibson, 355 U.S. 41, 45-46 (1957)    

Craig v. Boren, 429 U.S. 190, 197 (1976) 

Frontiero v. Richardson, 411 U.S. 677 (1973)  

Fusco v. Xerox Corp., 676 F. 2d 332, 334 (8th Cir. 1982)

Linda R.S. v. Richard D., 410 U.S. 614, 616,1146, 1148 (1973)

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586‑87

Mississippi Univ. for Women v. Hogan, 458 U.S.718, 724 (1982)

Morton v.Becker, 794 F.2d 185, 187 (8th Cir. 1986)

Orr v. Orr, 440 U.S. 275, 271-73, 99 S. Ct. 1102,1107-08 (1979)

Slaughter‑House Cases, 83 U.S. (16 Wall.) 36 (1872)

Stanton v. Stanton, 421 U.S. 7 (1975)

United States v. Virginia, 116 S. Ct. 2264, 2275 (1996)

Weinberger v. Wiesenfeld, 420 U.S. 636, 648 1975)

Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)

Statutes and Rules:

Fed. R. Civ. Proc. 56(c)

North Dakota Constitution, Art. I, Sec. 21

North Dakota Criminal Code Section 12.1-05-05

North Dakota Criminal Code Section 12.1-36-01

North Dakota Criminal Code Section 12.1-36-05

Primary Authorities:

United States Constitution, Amendment XIV, Sec. 1

Secondary Authorities:

Daniel A. Farber and John E. Mensch, The Ideological Origins of the Fourteenth Amendment, 1 Const.Commentaries 235 (1984)

Earl M. Maltz, Civil Rights, the Constitution, and Congress, 1863-69 ( 1990)

Lawrence Tribe Constitutional Law 1564-68 (2d Ed. 1988)

Tussman and ten Broek, The equal Protection of the Laws, 37 Cal. L. Rev. 341, 345 (1949)

I. INTRODUCTION

No one doubts that children should be protected from the needless and unconsented mutilation of their genitals. The question presented here is whether males should be denied such protection solely because of their sex. It is well settled that, in order to explicitly treat males and females differently, the State must show that the statute "serves important governmental objectives and that the discriminatory means employed," not the statute as a whole, are "substantially related to the achievement of those objectives." United States v. Virginia, 116 S.Ct. 2264, 2275 (1996) (citations omitted). Insofar as the purpose of Section 12.1-36-01 of the North Dakota Code is laudable--to remedy the serious problem posed by surgical alteration of normal, healthy, functioning genital tissue in children too young to consent, Plaintiffs heartily endorse that goal. Plaintiffs, however, assert that the statute is unconstitutionally under inclusive in simply excluding males from its protection. The State has not, and cannot, show that the exclusion of males from the reach of the statute is "substantially related" to the achievement of the state's legitimate objective of protecting children, and the statute is therefore unconstitutional.

     The central question presented here is whether minor males subjected to unnecessary genital surgery are harmed in a manner sufficiently similar to females subjected to that same procedure to make their gender-based exclusion a denial of equal protection of the laws. Plaintiffs vigorously maintain that males are exposed to harms from genital alteration that are in many cases similar or identical to those suffered by females. A large amount of medical opinion and documentation, even some submitted by the State of North Dakota itself is this case, supports Plaintiffs' position on that question. Because it cannot be said "beyond doubt" that Plaintiffs cannot possibly prove their factual contentions on this score, the State's motion to dismiss Plaintiffs' complaint must be denied.

II. FACTS

     Section 12.1-36-01 of the North Dakota Criminal Code provides:

     12.1-36-01. Surgical alteration of the genitals of female minor--Penalty--Exception.

1. Except as provided in subsection 2, any person who knowingly separates or surgically alters normal, healthy, functioning genital tissue of a female minor is guilty of a class C felony.

2. A surgical operation is not a violation of this section if a licensed medical practitioner performs the operation to correct an anatomical abnormality, or to remove diseased tissue that is an immediate threat to the health of the female minor. In applying this subsection, any belief that the operation is required as a matter of custom, ritual, or standard of practice may not be taken into consideration.

N.D. Crim. Code Sec.  12.1-36-01.

     The Plaintiffs here are Donna Fishbeck, individually, and as the mother and natural guardian of her infant son, Jonathan Fishbeck, Jody McLaughlin, and Duane Voskuil, Ph.D. Jonathan Fishbeck was circumcised as an infant with the consent of his father only. This procedure would not have taken place had the protection of section 12.1-36-01 extended to minor males, such as Jonathan Fishbeck.

     Jody McLaughlin is a North Dakota resident involved in human rights issues. Duane Voskuil is a Professor of philosophy and ethics also concerned with human rights.

     Plaintiffs challenge section 12.1-36-01 on Federal and State equal protection grounds, based on the statute's under inclusiveness, in expressly protecting only minor females, and in denying equivalent protection to males solely because of their gender. (Complaint, Sec. 29-31 and Sec. 32,33) Plaintiffs further allege the provision deprives infant males of liberty and property without Due Process (Complaint r 30), and violates Section 12.1-05-05 of the North Dakota Criminal Code.

     The State of North Dakota moves to dismiss, alleging that Plaintiffs lack standing and that the Complaint fails to state a claim on which relief can be granted. In the alternative, the State submits affidavit and documentary evidence, including testimony presented to the North Dakota legislature in support of passage of the provision, and the Affidavit medical opinion of Craig T. Shoemaker, attaching medical literature claimed to support Shoemaker's opinion.

     In response, Plaintiffs submit flatly contrary affidavit testimony and medical opinion, supported by voluminous scholarly and medical documentation. Plaintiffs submit the affidavit of Dr. Robert S. Van Howe, including Dr. Van Howe's foundation as an expert and forty-five supporting exhibits. Dr. Van Howe addresses and flatly contradicts each of the State's central medical contentions. Plaintiffs submit the Affidavit of Dr. George C. Denniston, again including his foundation as an expert and supporting documentary evidence. Dr. Denniston, too, testifies to the mutilation inherent in removal of healthy human genital tissue, regardless of the child's gender. Finally, Plaintiffs submit the Affidavit of Frederick Hodges, historian, medical writer and researcher, regarding the similarity in harm, as well as the human rights concerns presented by both female and  male genital alteration.

III. ARGUMENT

     A. Plaintiffs Have Standing.

     The State argues that Plaintiffs cannot show the requisite "personal stake in the outcome" of this case to support standing to invoke the jurisdiction of the federal court.

     The State's "standing" argument is particularly specious as applied to Jonathan Fishbeck, the minor male circumcised at birth. The State claims that Jonathan "has not alleged any injury traceable to N.D.C.C. Sec. 12.1-36-01." (State's Brief, at 3) Jonathan, however, plainly asserts a direct injury--the medically unjustified alteration of his healthy genital tissue. The State's claim that this amounts to no "injury" whatever is simply a more extreme version of its argument on the merits, that surgery on healthy male genitals is always a safe and healthful procedure, and that its benefits outweigh its harm. Insofar as the State claims that unconsented and permanent genital alteration constitutes no "harm" or "injury" whatever as a matter of law, it is difficult to take that claim seriously.

     The State's alternative argument is only slightly more sophisticated, and equally meritless. The State maintains that even if circumcision of an infant male constitutes a "direct injury," it is "not fairly traceable to N.D.C.C. Sec. 12.1-36-01" because Jonathan's father consented to the procedure. Thus, the argument goes, Jonathan's circumcision is traceable to the consent, not to the statute. In this specious argument, the State treats the father's consent as something like an "intervening/superseding" cause of the genital alteration. Legal causation in the tort sense, however, is not the test for standing. Plaintiffs clearly and colorable assert that Jonathan's genital alteration would not have occurred had North Dakota criminalized the procedure for boys as it has for girls. Simply put, Plaintiffs' claim is that Jonathan's genitals would not have been altered had that act been a crime. This amply satisfies the constitutional test--that but for the statute's unconstitutional failure to include minor males, as well as females, within its protection, Jonathan's injury would not have occurred.

     Finally, the State argues that Plaintiffs lack standing because "[n]one of the Plaintiffs are minor females prohibited from having their genital tissue surgically altered. . ." (State's Brief, supra, at 3) The argument here seems to be that minor males have no standing to attack a statute which grants gender‑based protection only to the opposite sex and not to them. There are two problems with this argument. First, it proves too much, because it is true of all underinclusiveness challenges under the equal protection clause. And second, this argument completely misunderstands the nature of equal protection analysis.

     The Court has regularly refused to dismiss underinclusiveness challenges to statutes on this "standing" rationale. In Linda R. S. v. Richard D., 410 U.S. 614, 616, 93 S.Ct. 1146, 1148 (1973), the Court squarely rejected precisely such an argument, holding that a parent of a legitimate child required to pay child support had standing to challenge the statutory exclusion of parents of illegitimate children from that obligation. And in Orr v. Orr, 440 U.S. 275, 271-73, 99 S. Ct. 1102, 1107-08 (1979), a husband challenged the constitutionality of a statutory scheme providing that husbands, but not wives, may be required to pay alimony. It was sufficient for standing that the Plaintiff "bears a burden he would not bear were he female." Orr, 440 U.S. at 273, 99 S.Ct. at 1108.

     The State's argument fundamentally misconceives the nature of the constitutional command of equal protection. Plaintiff Jonathan Fishbeck's claim is that he was denied the equal protection of the laws when he was exposed to, and in fact suffered, genital mutilation entirely because of his gender. The fact that the State protects females from this harm, and denies the same protection to males, far from depriving him of "standing," constitutes the very essence of the constitutional violation. Jonathan has been permanently injured precisely because the State, based on his gender, left him exposed to a harm from which the State would have protected him, were he female. This is a denial of the "equal protection of the laws" in its clearest and most traditional sense. Only the State's apparent desire to write the equal protection clause entirely out of the Constitution can explain its studious ignorance on this score.

The adult Plaintiffs, too, demonstrate the requisite "personal state in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which th[is] court so largely depends for illumination of difficult constitutional questions." Linda 5., 410 U.S. at 616 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). Donna Fishbeck, Jonathan's mother, faces many years of raising a child subject to the multitude of physical and psychological harms detailed in Plaintiffs' medical submissions to the court. Even more important, she personally experienced extreme mental distress as her child underwent this painful, bloody surgery, a procedure that violated her every natural yearning to protect her child.

Jody McLaughlin and Duane Voskuil, too, should remain in the suit. As explained above, the constitutional issue is plainly joined by the undeniable personal stake of Jonathan and Donna Fishbeck. There is no prudential reason to remove any of the litigants, and the State's motion as to standing should be denied.

B. Plaintiffs State A Claim That Section 12.t‑36‑01 Violates the Constitutional Guaranty of Equal Protection.

1. Summary of Argument.

Plaintiffs amply state a claim that section 12.1-36-01 of North Dakota's Criminal Code violates the constitutional guaranty of equal protection. The State's constitutional equal protection analysis turns on long-recognized, and fatal, errors in legal reasoning.

First, the State argues that it has not denied equal protection because its purpose is "protecting female minors. . . .," (State's Brief, supra, at 9), and the statute applies to all who are similarly situated with respect to this purpose, because it applies to all those who are female. The claim that a statute is immune to equal protection scrutiny whenever it applies to everyone to whom it applies, however, has long been rejected as sophistry. See Tussman and ten Broek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341, 345 (1949).

     Second, and compounding this error, the State repeatedly suggests that men and women are so obviously physically different, that therefore no statute treating them differently could possibly deny equal protection. (State's Brief, supra, at 6). The State argues, for example, that "[i]t does not take a medical doctor to discern that males and females are not similarly situated with respect to their genitalia. . . ." Id.  The argument here seems to be that because male and female genitalia are "naturally" different, and because the State has, thus, drawn its line along nature's boundary, the statute is beyond equal protection scrutiny of any kind. This sophistry, too, has long been discredited. The question in equal protection analysis is not whether the line drawn is somehow "natural" when considered in the abstract. The question instead is whether the law's discriminatory treatment is justified in light of the legitimate and important purposes the statute is designed to serve. Tussman and ten Broek, supra, at 346.

Moreover, the State proffers, in support of its alternative motion for summary judgment, various "facts" it claims are "not in dispute." (See State of North Dakota Brief, at 6, n. 3). Far from being undisputed, however, the "facts" on which the State so heavily relies actually beg the central factual question-­whether minor males are harmed in a manner sufficiently similar to the harm that unnecessary surgical alteration of normal, healthy, functioning genital tissue visits on minor females to run afoul of equal protection. This is not an easy question, properly dismissed on the State's truncated version of "undisputed" fact and superficial analysis of the law of equal protection. The dispute is, rather, complex and genuine, and hotly contested on both sides. The matter requires a genuine and thorough factual examination, and unbiased, careful, and courageous legal analysis. The State's motion to dismiss must be denied.

2. Standards Applicable to the State's Motion.

In considering the State's motion to dismiss, the Court must assume all facts in the Complaint are true. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994) (citing Convey v. Gibson, 355 U.S. 41, 45-46 (1957). The Court must construe the Complaint "liberally" and "in the light most favorable to the Plaintiff." Coleman, 40 F.3d at 258 (citing Fusco v. Xerox Corp., 676 F. 2d 332, 334 (8th Cir. 1982). A motion to dismiss for failure to state a claim "should not be granted unless it appears beyond a doubt that the Plaintiff can prove no set of facts which would entitle the Plaintiff to relief." Coleman, 40 F.3d at 258 (citing Morton v. Becker, 794 F.2d 185, 187 (8th Cir. 1986) (emphasis added)).

Even if the Court applies the standard for summary judgment, the State's motion fares no better. A summary judgment is warranted only "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. Proc. 56(c). A disputed fact is "material" if its resolution affects the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); (1986); Matsushita Alec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 586-87. The issue is "genuine" where the factual dispute "has a "real basis in the record." Matsushita, 475 U.S. at 586-87. Plaintiffs amply offer material facts creating a genuine issue for trial.

3. Legal Background of Equal Protection.

     The equal protection clause of the Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, Sec. 1. In the classic article on the subject, Tussman and ten Broek explain that "the equal protection clause was designed to impose upon the states a positive duty to supply protection to all persons in the enjoyment of their natural and inalienable rights -- especially life, liberty, and property --and to do so equally." Tussman and ten Broek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341 (1949). The first portion of this thesis, a positive duty on the states to protect natural rights, has been controversial in some circles. But there can be no doubt that the Framers intended to ensure at least the equal protection of all in the enjoyment of these rights, and thus to require the states to extend the same protection for these rights equally to all citizens. See generally Earl M. Maltz, Civil Rights, the Constitution, and Congress, 1863-69 (1990); and Daniel A. Farber and John E. Mensch, The Ideological Origins of the Fourteenth Amendment, 1 Const. Commentaries 235 (1984).

Constitutional equal protection does not require simply equal enforcement of whatever laws the legislature might choose to pass. Constitutional scrutiny extends to the content and effect of laws. As the Supreme Court noted early on, "[t]he equal protection of laws is a pledge of the protection of equal laws." Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)

There is a fundamental tension in equal protection analysis, between the pledge of "equal laws" protecting all, and the fact that virtually every law nevertheless treats some persons somehow unequally. Legislatures must be reasonably free to impose special burdens on variously defined classes. The task imposed on courts is to distinguish legislative classifications that violate equality from those that do not.

Tussman and ten Broek famously explain as follows:

"The Court . . . has resolved the contradictory demands of legislative specialization and constitutional generality by a doctrine of reasonable classification. . . . The Constitution does not require that things different in fact be treated in law as though they were the same. But it does require, in its concern for equality, that those who are similarly situated be similarly treated. The measure of the reasonableness of a classification is the degree of its success in treating similarly those similarly situated. . ." Id . at 344.

As the reasonableness of a classification turns on the similarity of situation, Tussman and ten Broek continue: "[W]here are we to look for the test of similarity of situation which determines the reasonableness of a classification? The inescapable answer is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law. . ." Id .

     The question that arises is, "what does that ambiguous and crucial phase 'similarly situated' mean?" In answering that question, Tussman and ten Broek point out two common errors that often arise in attempting to apply this core command. 37. Cal.L.Rev. at 345.

[Footnote 1: Pointing out these errors is important, because the Attorney General's Memorandum relies heavily on both in seeking to defeat plaintiff's claims.]

The first error lies in simply interpreting "similarly situated" to mean "'similar in possession of the classifying trait."' Id. at 345. Obviously all members of any class the legislature might define are similar in possessing the trait the legislature has used to define the class. Any class whatsoever would pass equal protection scrutiny if this is what "similarly situated" means, because all laws apply equally to all those to whom they apply. This tautology cannot answer the question the equal protection clause requires the court to answer, namely whether the legislative classification is equitable or reasonable. Id.

The second interpretive error is judging a classification's reasonableness by whether a classification is "natural" rather than "artificial." As Tussman and ten Broek famously put it, however, "[t]he issue is not whether, in defining a class, the legislature has carved the universe at a natural joint. If we want to know if such classifications are reasonable, it is fruitless to consider whether or not they correspond to some 'natural' grouping or separate those who naturally belong together." Tussman and ten Broek, supra, 37..Cal.L.Rev. at 346.

Moreover, the question is not merely whether the l aw substantially serves some important government objective. The question is whether the discrimination does so. For a gender classification to stand, "[t]he State must show 'at least that the [challenged] classification serves 'important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives."' United States v. Virginia, 116, S.Ct. at 2275, quoting Mississippi University for Women v. Hogan, 458 U.S. at 724 (emphasis added). The State, thus, may not simply show that section 12.1-36-01 is reasonably designed to serve some important end (protection minor females from genital mutilation) and does so. The State must justify the discrimination itself.

4.   Heightened Scrutiny is Applied to Gender Based Classifications.

While, unavoidably, the "fit" between legislative classificatory means and substantive legislative ends will be imperfect, the Court has determined that permitting legislatures to use some classifications poses a much greater threat to the ideal of equal protection of the laws than permitting the use of others. Much of the work of the actual decision of cases, therefore, tends to occur at the outset of the analysis, in the course of determining what "level of scrutiny" the Court will apply to the law. In part this inquiry is a matter of how tight the "fit" must be between the harm and the classification before the Court will strike it down.

Some classifications are particularly threatening to the ideal of equality before the law. The desire to outlaw legal classification by race was the obvious and explicit goal of the equal protection clause. Indeed, the Court's early cases suggested that this was the sole import of the clause.

[Footnote: 2 In the Slaughter-House Cases, 83 U.S. (16 Waling.) 36 (1872), butchers competing with a New Orleans slaughter-house monopoly challenged the monopoly in part on equal protection grounds. Justice Miller gave the equal protection claim short shrift, explaining that he "doubted] . . . whether any action of a State not directed by way of discrimination against the negros as a class, or on account of their race, [would] ever be held to come within the purview of [the clause]." 83 U.S. at 81.

The Court's early restrictive stance on equal protection seemingly resulted from a "floodgate" concern. One "troublesome" case presented earlier the same term dramatized the fear, an equal protection challenge to Illinois' prohibition on the practice of law by women. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872). The Court rejected the claim, Justice Bradley articulating his famous concurrence: "Man is, or should be, woman's protector and defender. . . . The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." Id. at 151 (Bradley, J., concurring).

Claims of sex discrimination fare better under the modern equal protection analysis. The Court, however, has continued to differentiate gender from race discrimination, in part based on the history of the equal protection clause, but also because of a belief that certain real differences between the sexes make the blanket condemnation of "strict scrutiny" inappropriate. On the other hand, the danger that legislatures may often deny equal liberty to persons of either gender based on their sex, often in the guise of granting special benefits to women, has led the Court to reject the relaxed "rational basis" test applied to equal protection claims in the economic realm.

     Legislative classifications based on gender are, thus, subject to what has been called intermediate scrutiny. See Craig v. Boren, 429 U.S. 190, 197 (1976) To withstand constitutional challenge, classifications by gender "must serve important governmental objectives and must be substantially related to achievement of those objectives." Id.

Indeed, the Court is moving toward heightening the scrutiny employed for overt gender classifications, such as the one at issue here. In United States v. Virginia, 116 S.Ct. 2264, (1996), Justice Ginsburg for the Court stated repeatedly that "[p]arties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification' for that action." United States v. Virginia, 116 S. Ct. at 2271, 2274, 2275 (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (emphasis added)); see also United States v. Virginia, 116 S. Ct. at 2275 ("we conclude that Virginia has shown no 'exceedingly persuasive justification' for excluding all women from the citizen soldier training afforded by VMI").

     The gender cases differ from the race cases in another way. This aspect is emphasized by Professor Tribe. See Lawrence Tribe Constitutional Law 1564-68 (2d Ed. 1988). Unlike racially discriminatory laws, which are often based on simple hostility, sexually discriminatory laws are often based on or justified by a paternalistic desire to favor or "protect" women. For this reason, gender discrimination suits are often brought by men, and the goal is not to strike down the law but to require its extension to the Plaintiffs.

5. Analysis of Section 12.1-36-01 Under the Proper Legal Standards Compels Rejection of The State's Motion .

Analysis of section 12.1-36-01 under the proper legal standards compels rejection of the State's motion. In its brief, the State argues that it has not denied equal protection because its purpose is "protecting female minors. . . .," (State's-Brief, supra, at 9), and the statute applies to all who are similarly situated with respect to this purpose, because it applies to all those who are female. The state essentially interprets "similarly situated" to mean "'similar in possession of the classifying trait."' Tussmen and tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341, 345 (1949). The claim that a statute is immune to equal protection scrutiny whenever it applies to everyone to whom it applies, however, has long been rejected as sophistry. Id. The State's tautological reasoning cannot suffice.

     Second, and compounding the error, the State repeatedly suggests that men and women are so obviously physically different that, therefore, no statute treating them differently could possibly deny equal protection. (State's Brief, supra, at 6). The State simplistically asserts: "it does not take a medical doctor to discern that males and females are not similarly situated with respect to their genitalia and the type of medical procedures that can be performed on their genitalia," and section 12.1-?6-01 merely "realistically reflects the fact that the sexes are not similarly situated with respect to genital surgery." (State's Brief, at 6)

The State's position is apparently that because male and female genitalia are "naturally" different, and because the State has, thus, drawn its line along nature's boundary, the statute is beyond equal protection scrutiny of any kind. This sophistry, too, has long been discredited. As Tussman and ten Broek long ago noted, classifications along superficially "natural joints]" affords no insulation to searching equal protection analysis.

     The question in equal protection analysis is not whether the line drawn is somehow "natural" when considered in the abstract, or whether the genitalia or surgical alterations are superficially identical, or on cultural assumptions. The question instead is whether the law's discriminatory treatment is justified in light of the legitimate and important purposes the statute is designed to serve. Tussman and ten Broek, supra, at 346. A searching factual examination is required, to carefully compare the reach of the classification used with the actual scope of the problem the law is designed to serve Mississippi University for Women v. Hogan, 458 U.S. 718, 728 (1982) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 648.1975) (the court must conduct its own "'inquiry into the actual purposes underlying a statutory scheme,"' and conduct a "searching analysis" no matter what specific purpose is urged in support of the law). See also Tussman and tenBroek, 37 Cal. L. Rev. at 347-48 (the fundamental question of equal protection is a question of the degree of "fit" between the area actually occupied by the "Mischief" aimed at, and that occupied by persons displaying the "Trait" used to define the legislative category).

An examination of Supreme Court precedent scrutinizing gender-based classifications reveals that the "fit" between the purpose of the law at issue here, needless and unconsented mutilation of the genitals of children for nonmedical reasons, does not match the discriminatory failure to extend the protection to minor males.

     In Orr v. Orr, the Supreme Court examined and rejected precisely one of the expedients used by the State here to attempt to escape equal protection scrutiny. In Orr, the state argued that no equal protection problem was presented because the statutory scheme, with its exclusion of females from the alimony obligation, had been "designed" for "the wife of a broken marriage who needs financial assistance." Orr, 440 U.S. at 280 (citation omitted). The Court refused to simplistically accept the goal of helping "wives" as the "important state interest" served by the gender classification. Instead, the. Court construed the only legitimate purposes the classification might serve were either to "provide help for needy.spouses, using sex as a proxy for need," or to compensate women for past discrimination. Id. at 280-83 (emphasis added). The blanket discrimination in Orr was justified by neither. Similarly, in Frontiero v. Richardson, 411 U.S. 677 (1973), a Fifth Amendment equal protection case, the Court struck down a statute that presumed all spouses of males were dependant but required all spouses of females to prove dependency.

In Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), the Court struck down a section of the Social Security Act awarding survivor's benefits to widows responsible for dependant children, but not to similarly situated widowers. The Court held, in light of the purpose of the law, to enable the surviving parent to remain at home to care for the child, the gender-based classification was "entirely irrational." Id. As the Court explained, "It is no less important for a child to be cared for by its sole surviving parent when that parent is male rather than female." Id.

In Stanton v. Stanton, 421 U.S. 7 (1975), the Court held that Utah could not impose a parental support obligation for daughters until age 18, but for sons until age 21. "[A] child, male or female, is still a child . . . If a specified age of minority is required for the boy in order to assure him parental support while he attains his education and training, so, too, it is for the girl. To distinguish between the two on education grounds is to be self-serving . . . [and] coincides with the role‑typing society has long imposed." Id. at 15-16

     In Califano v. Goldfarb, 430 U.S. 199 (1977), the Court invalidated a Social Security provision that paid survivor benefits to widowers only if they could prove substantial reliance on the deceased's income, but to widows without that proof. Justice Stevens' concurrence is particularly apposite to this case. He noted that unexamined and unjustified assumptions are particularly likely to be the real reason for the distinctive treatment in gender cases: "It is fair to infer that habit. rather than analvsis or actual reflection, made it seem acceptable to equate the terms 'widow' and 'dependent surviving spouse.' That kind of automatic reflex is far different from . . . a legislative decision to favor females in order to compensate past wrongs. . ." Califano, 430 U.S. at 222.

Particularly at this procedural posture, where the evidence must be viewed favorably to Plaintiffs, and Plaintiffs' evidence and medical opinion accepted as true, comparing the reach of the classification with the actual scope of the problem the law is designed to serve reveals that the state completely fails to meet its burden of showing that the Plaintiffs, beyond doubt, could prove no set of facts which would entitle them to relief, or that there are no material factual issues in dispute.

Section 12.1-36-01 represents a legislative Judgment that, absent clear medical necessity, permanent surgical alteration of the sexual organs of a nonconsenting minor, the most private and sensitive part of the body, represents a violation of the fundamental rights of that person. Section-12.1-36-05 further makes it clear that such factors as "custom, ritual, or standard of practice" simply may not be taken into account. Id.

     As set forth in detail below, Plaintiffs amply support that at least some forms of genital mutilation, absolutely criminalized when performed on female minors, as to boys, are left wholly to parental discretion, colored by precisely the prohibited factors of "custom, ritual, or standard of practice." Plaintiffs amply support that the male procedure, rather than benign, and medically indicated, is rather precisely as harmful and unjustified as at least some forms of the procedure criminalized when performed on females. In short, the reach of the classification compared with the actual scope of the problem the law is designed to serve simply fails to support the gender based denial of equal protection.

6. Plaintiff Amply Demonstrate A Genuine Issue of Material Fact As To Whether The Harm To Minor Males Is Sufficiently Similar To The Harm To Minor Females To Run Afoul Of Equal Protection.

Plaintiffs amply demonstrate a genuine, indeed highly complex and troubling, factual dispute over the central question at issue--whether minor males are harmed in a manner sufficiently similar to the harm that unnecessary surgical alteration of normal, healthy, functioning genital tissue visits on minor females to run afoul of equal protection.

a) The State's Alleged Undisputed Facts.

The State proffers, in support of its alternative motion for summary judgment, various "facts" it claims are "not in dispute":

1. Male genitalia are not anatomically similarly (sic) to female genitalia.

2. Surgically altering female genitalia is not similar to the procedure of male circumcision.

3. Routine female genital alteration is not known to have any immediate or potential medical benefits.

4. Routine female genital alteration is a health hazard with short and long term physical complications and psychological effects.

5. Neonatal male circumcision is a quick and generally safe procedure.

6. Although some debate exist (sic) in the medical community, there is substantial research and documentation indicating that male circumcision has potential medical benefits. (See State of North Dakota Brief, at 6, n. 3). However, far from being undisputed, the voluminous medical opinion and documentation, even evidence submitted by the State of North Dakota itself, reveals that each of these points could hardly be more in dispute.

b) Medical and Scholarly Evidence, Even The State's Own Submission, Squarely Contradicts the Above "Facts."

Plaintiffs' affidavit testimony and medical opinion, supported by voluminous scholarly and medical documentation, flatly contradicts the above contentions on which the State's motion rests. Plaintiffs' expert affidavits are submitted with adequate foundation, and must be accepted as true at this procedural stage. Indeed, however, even the State's own medical and scholarly evidence contradicts much of what the State simplistically presents as undisputed truth, and further demonstrates genuine issues for factual examination.

     The affidavit of Plaintiffs' expert, Dr. Robert S. Van Howe, shows him to be well qualified as an expert on the subject of infant male circumcision. His affidavit is detailed, persuasive, and includes some forty-five supporting exhibits. Dr. Van Howe squarely refutes the State's central contention that male and female genitalia and alteration procedures, risks, and alleged benefits are, as a matter of law, so dissimilar with respect to the purposes of section 12.1-36-01, as to withstand heightened constitutional scrutiny as a matter of law at this procedural stage.

     Contrary to the State's contention, Dr. Van Howe opines that some forms of female genital alteration are anatomically similar to male circumcision, or removal of the prepuce from the male penis. (See Van Howe Aff. Sec. 4, 12). As Dr. Howe notes, in the mildest forms of the female procedure, only part or all of the clitoris is removed along with the preputial tissue that covers it, and indeed, the amount of tissue removed is considerably less than in the male procedure. (Van Howe Aff. Sec. 4(a)) Even the State's own documentary evidence (contradicting its own expert, Dr. Shoemaker) supports the similarity of at least some form of male and female alteration. (See Shoemaker Aff. Ex. 9 (Journal of the American Medical Association, Dec. 6, 1995, at 1714)). After noting the three types of surgical modification to female genitalia, the JAMA article explains, "the least extreme form, Sunna, consists of a subtotal clitoridectomy, the degree of which varies. Sunna is the only type of female genital procedure that could Properly be called circumcision. When performed under sterile conditions (which is often not the case), lona-term adverse physical consequences to the health of the woman are rare." (Shoemaker Aff. Ex. 9, at 1714 (emphasis added)). The Shoemaker exhibit also notes a possible medical justification for the procedure, in women unable to achieve orgasm. Id.

     Dr. Van Howe also opines, contrary to the State's submissions, that "the complications from surgical alteration of the genitalia are similar for both male and females. The only differences are related to the gender specific functions of menstruation, child birth, impotence, and premature ejaculation."

Van Howe Aff. ¦ 5. Dr. Van Howe describes myriad complications in males, squarely contradicting the State's contention that "[n]eonatal male circumcision is a quick and generally safe procedure." As Van Howe notes, both male and female procedures can involve "severe pain, hemorrhage, infection and death." An abnormal narrowing of the urethra is "common" in males who have undergone genital alteration. In addition, psychological complications are well documented in boys, and both sexes experience decreased sexual stimulation. (Van Howe Aff. Sec. 5 (a)(d)). Even Dr. Shoemaker admits that "It is known that the glans penis becomes less sensitive when the prepuce is removed and sexual sensations may be decreased." (Shoemaker Aff. Sec. 4(b)).

     Again, the State's own documentary evidence seems to better support Dr. Van Howe than Dr. Shoemaker. E.g., Shoemaker Aff. Ex. 4 (The Question of Routine Neonatal Circumcision, New England journal of Medicine, May 3, 1990, at 1313) In the New England Journal article, the authors note that the risk of male complications might have been "underestimated," and go on to note possible complications, including "infection" or "excessive bleeding." They even note "[s]poradic cases of operative misadventure . . . in which the glans penis was damaged or partially amputated, or too much skin was removed from the shaft of the penis. Meatal ulceration and meatal stenosis have also been described as consequences of neonatal circumcision."

(Shoemaker Aff. Ex. 4, at 1313). Finally, the authors even note, "rare examples of gender reassignment due to surgical error." Id.

     Dr. Van Howe states that medical benefits of female alteration are unknown (although some, such as improved hygiene leading to fewer infections and cancers could be speculated, as they are for males). Critically, however, Dr. Howe's medical opinion, based on his experience and research, is also "that there are no clear medical benefits to male genital alteration." (Van Howe Aff. Sec. 7). Dr. Van Howe debunks, in detail, the exact alleged medical benefits of the male procedure which the State submits as such conclusive fact, and critically evaluates the flaws in research and reasoning in Dr. Shoemaker's affidavit submitted by the State. (Van Howe Aff. Sec. 7(a)-(g), and Sec. 11 (a)

(i)). Dr. Van Howe concludes that to date, "no compelling or clear medical indication for any form of routine surgical alteration of the genitalia [male or female] has been demonstrated." (Van Howe Aff. Sec. 12).

     Finally, Dr. Van Howe notes persuasively that, in either case, while the reasons for surgical alteration can be challenged, "the reasons cited by families for altering the genitalia of their children is nearly identical whether it is a girl in Africa or a boy in the United States" (Van Howe Aff. Sec. 10(a)-(b) (citing cleanliness, preventing illness, religion, looking like other children or like their parents, fear of promiscuity, and acceptance of the altered genitalia as more attractive by the opposite sex)).

     Plaintiffs also submit the Affidavit of Dr. George C. Denniston, again including his foundation as an expert and attaching persuasive supporting documentary evidence. Dr. Denniston, too, testifies to the mutilation inherent in removal of healthy human genital tissue, regardless of the child's gender. Dr. Denniston, indeed opines that the procedure violates the American Medical Association Code of Ethics. (Denniston Aff. Sec. 4-6.)

Plaintiffs submit the Affidavit of Frederick Hodges, historian, medical writer and researcher. Professor Hodges testifies to the harm in male and female procedures. (Hodges Aff. Sec. 4, 6). Indeed, the radical female procedure could even be seen as less harmful than the radical male procedure, as it at least leaves intact fertility, ability to have orgasm, and the ability to lead a productive life. (Hodges Aff. Sec. 3). Hodges further testifies that based on his review of medical literature, the reported benefits allegedly resulting from surgical alteration of female genitalia have traditionally largely been the same as the reported benefits allegedly resulting from male. (Hodges Aff. Sec.5 (a)). Hodges goes on to debunk in detail the alleged benefits of the male procedure. (Hodges Aff. r 5 (b)).

     Finally, Hodges describes the serious human rights concerns inherent in both female and male genital alteration. (Hodges Aff.Sec. 5(c)).

7.   Because The Harm To Minor Males Is Similar To The Harm To Minor Females, and Falls Plainly Within The Purpose Of Section 12.1-36-01. Plaintiffs State A Claim That Failure to Similarly Protect Minor Males Violates Constitutional Guarantees of Equal Protection.

     Because the harm to minor males is similar to the harm to minor females, and falls plainly within the proper purposes of section 12.1-36-01, Plaintiffs state a claim that failure to similarly protect minor males violates constitutional guarantees of equal protection. The very point of heightened scrutiny is to put "habits" of thinking and "automatic reflexes" themselves under scrutiny. Califano, 430 U.S. at 222.

Those who seek to defend gender-based government classifications "must demonstrate an exceedinalv persuasive justification"  for the discrimination. United States v. Virginia, 116 S.Ct. 2264 (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982). Particularly at this procedural stage, the highly disputed evidence wholly fails to justify the State of North Dakota's discriminatory failure to protect minor males from a harm it deems important to prevent as to minor females.

     Persuasively, the State's own evidence reveals precisely the important role played here by habits and prejudices that it is the function of gender discrimination scrutiny to question. Under section 12.1-36-01, the legislature expressly mandated that, in connection with surgical alteration of the genitalia of minor females, "any belief that the operation is required as a matter of custom, ritual, or standard of practice may not be taken into consideration." N.D. Crim. Code sec.12.1-36-01. Not only Plaintiffs' evidence, but again, the State's own evidence, reveals that precisely the prohibited factors are not only allowed, but critical to the decision to surgically alter the genitals of male children:

"When considering circumcision of their infant son, parents should be fully informed on the possible benefits and potential risks of newborn circumcision, both with and without local anesthesia. In addition, to the medical aspects, other factors will affect the parents' decision, including esthetics, religion, cultural attitudes. social pressures, and tradition."

(Shoemaker Aff., Ex. 2, at 390 (emphasis added)).

     To allow the legislature to justify gender‑based discrimination on such an important and sensitive matter based on the widespread nature of gender-based prejudices is the most blatant sort of bootstrapping. See esp. Stanton v. Stanton, 421 U.S. 7 (1975). The fact that the discrimination here reflects and reinforces such unquestioned stereotyping is a reason to strike this law down, not to uphold it.

     The central question presented here is whether minor males subjected to unnecessary genital surgery are harmed in a manner sufficiently similar to females subjected to that same procedure to make their gender-based exclusion a denial of equal protection of the laws. A large amount of medical opinion and documentation, even some submitted by the State of North Dakota itself, shows that males are exposed to harms from genital alteration that are in many cases similar or identical to those suffered by females. Because it cannot be said "beyond doubt" that Plaintiffs cannot possibly prove their factual contentions on this score, the State's motion to dismiss Plaintiffs' complaint must be denied.

C. Plaintiffs State A Claim That Section 12.1-36-01 Violates the Equal Protection Guaranty of the North Dakota Constitution.

The State also challenges Plaintiffs' claim that Section 12.1-36-01 violates the Equal Protection Clause of the North Dakota Constitution, Art. I, Sec. 21. As the standards of review for analyzing equal protection claims under the North Dakota Constitution mirror those applicable in federal equal protection analysis, e.g., B.H. v. K.D., 506 NW 2d 368, 375-76 (N.D. 1993), the State's motion as to this claim, too, should be sdenied.

IV. CONCLUSION.

Based upon the foregoing, the Motion of the State of North Dakota to Dismiss or for Summary Judgment should be denied in every respect, and Plaintiffs be allowed to proceed to trial.

V. ORAL ARGUMENT REQUEST

Oral argument on these motions is kindly requested.

Dated: September 11, 1996

ZENAS BAER & ASSOCIATES

[Signed:]

Zenas Baer (#120595) Randall Knutson (#229891)
Attorneys for Plaintiffs
331 6th St., Box 249
Hawley, MN 56549
(218) 483-3372

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District Court Judgment