Commentary on Sections Section 1 – Offence of female genital mutilation
6.Subsection (1) makes it an offence for a person to carry out the specified female genital mutilation procedures on another person. The procedures are offences if they are performed upon anyone who has specified genitalia, regardless of whether or not that person is, legally, of the female gender. Therefore the Act applies to a person who has female genitalia as a result of gender reassignment surgery. Subsection (2) lists the mutilating procedures which are unlawful.
7.Subsections (3), (4) and (5) set out the circumstances in which an offence is not committed. It is not an offence for a registered medical practitioner to carry out surgical operations which are necessary for a person’s physical or mental health or for a registered medical practitioner, registered midwife, or person training to be a registered medical practitioner or midwife to carry out operations in connection with labour or childbirth. An example of an operation necessary for physical health could be the removal of relevant cancerous areas. An example of an operation necessary for mental health could be gender reassignment surgery and this also could include, for example, cosmetic surgery resulting from the distress caused by a perception of abnormality.
8.Subsection (6) provides that when assessing a person’s mental health, no account is to be taken of any belief that FGM is needed as a matter of custom or ritual. So an FGM operation could not be carried out legally on the grounds that a person’s mental health would suffer if they did not conform with their community’s prevailing custom.
9.The Act does not make specific provision in relation to when a surgical operation will be considered to be necessary for a person’s mental or physical health. Ultimately, that will be a matter for the Scottish courts to determine on the facts of the case if a prosecution is brought.