Choice as a Normative Transformer

In liberal democracies there is a general presumption that individuals should be left free to choose whether to participate in practices that affect only themselves. One key proponent of this idea is philosopher John Stuart Mill, who writes: “The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign” [5, p. 78]. This presumption of individual freedom of choice suggests the permissibility of cosmetic surgery. If people want to undergo surgical procedures to alter their body they should be free to do so, and it would be beyond the scope of the liberal state to forbid them. Prioritising choice thus supports the legalisation of all forms of surgical modification on everyone capable of exercising choice.

Mill is by no means the only philosopher to prioritise choice. Many political philosophers use choice as what I call a ‘normative transformer’. A normative transformer is something that changes an outcome from normatively unacceptable to normatively acceptable [6]. Choice may be used to normatively transform an inequality from one that is unjust to one that is just. For example, some theorists argue that it is not an injustice if women are paid less than men so long as the reason for this pay gap is that women and men choose different jobs [7]. Or choice may be used to normatively transform a criminal assault into a legal act, as when rape is criminalised but even violent consensual sex is not, or when boxing is legal but grievous bodily harm (GBH) is not, or when consensual surgery is legal but non-consensual surgery is not. Choice may also be used as a normative transformer in a more general sense, indicating that a practice should be immune from moral or other judgement if it has been chosen. One example is the idea that feminism means not criticising women’s choices, even if they choose to participate in gendered practices such as cosmetic surgery, wearing makeup, or removing body hair [8].

Although Mill’s principle of individual choice is extremely influential and generally accepted, it is usually thought to admit of exceptions. Most states do engage in some forms of paternalism, forbidding their citizens from making some choices for their own good. For example, it is common for even liberal states to require the use of seatbelts in cars or to forbid the use of dangerous recreational drugs. Paternalism in cases such as these may be justified by the seriousness of the harm that paternalism prevents, or by factors that undermine the extent to which individuals can really be said to be choosing freely.

Elsewhere I have argued that there are grounds for state interference in individuals’ choices if those choices are characterised by both disadvantage and influence. [6] The disadvantage factor applies if a choice disadvantages those who make it, relative to those who choose differently. This disadvantage may be physical or mental, such as the risk of bodily harm or emotional distress. Alternatively, the disadvantage may be economic or status-based, such as suffering financial cost or being regarded as inferior. The disadvantage factor alerts us to the fact that if people make choices that disadvantage them, there is a prima facie reason to be concerned about that choice.

The second factor that prevents choice from properly acting as a normative transformer is the influence factor. The influence factor applies if there are identifiable pressures on the choosers to choose as they do. This influence may be direct and interpersonal, such as when a man repeatedly tells his partner that she would look better with breast implants. Or it may be more diffuse and capillary, such as when women live in a general climate of focus on their appearance, with magazines, adverts and beauty products combining to portray an image of the ideal or even acceptable woman [6, 9, 10]. If the influence factor is present then we should question whether the choice really is a free one.

The influence factor on its own is not enough to render a choice suspect. All choices are made within a social context. All of us form our preferences and shape our choices around the norms and expectations of that context. But where there are identifiable ways in which people are pressured to make choices that disadvantage them – that is, where the influence and disadvantage factors are combined – there is reason to think that choice should not be regarded as a normative transformer. Choices that are characterised by disadvantage and influence are cases of injustice, and may justify intervention from the state and other actors.

FGCS and the Law

UK law does not grant women permission to undergo genital procedures whenever they choose. The practice of genital cutting, known legally as female genital mutilation (FGM), is outlawed, even for consenting adult women, by the UK Female Genital Mutilation Act 2003. The Act states, “It is a criminal offence to excise, infibulate or otherwise mutilate the whole or any part of a girl’s labia majora, labia minora or clitoris.”

The primary justification for this prohibition is that FGM is a harmful, dangerous and destructive practice that paradigmatically involves the mutilation of young girls against their will in order to satisfy sexist cultural norms. Women and girls therefore need to be protected from the practice by legal prohibition. This case for outlawing FGM performed on girls under the age of 18 can follow a simple choice-based logic, without invoking the analysis I offered earlier. Children are commonly not thought to have the ability to give consent on serious, irreversible, risky procedures such as FGM, for two reasons. First, children lack the mental capacity to gather adequate information and assess it rationally. Second, children lack the ability to withhold consent because they are under the effective control of parents and other adults, meaning that they are likely to cave in to pressure to consent to procedures they do not want, or that they are vulnerable to sanction and abuse if they do manage to resist. So, an approach that prioritises choice is consistent with the illegality of FGM for children. Indeed, an approach of this kind has implications that extend far beyond the existing legal framework, as it implies the impermissibility of many cultural and cosmetic practices routinely performed on children such as male circumcision, otoplasty and cosmetic dentistry.²

However, while the UK Female Genital Mutilation Act 2003 refers to “girls”, its provisions also apply to adult women. That is to say, the Act explicitly prevents any woman from choosing modification of her genitals without clinical indication. This prohibition includes labiaplasty and other similar procedures, as labiaplasty just is to “excise … part of a girl’s labia majora [or] labia minora.” Labiaplasty is thus explicitly covered by the definition of procedures that are presumptively illegal under the Female Genital Mutilation Act.³

However, FGCS is widely available in the UK, and openly advertised, as we saw at the start of this chapter. This is possible because the Act allows an exception: “no offence is committed by an approved person who performs a surgical operation on a girl which is necessary for her physical or mental health.” There are restrictions on what sorts of things count as making surgery necessary: the Act stipulates, “For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual” [14]. However, the guidance notes for the legislation say that procedures that are necessary for mental health can include “cosmetic surgery resulting from the distress caused by a perception of abnormality.” [15]

This perception of abnormality does not have to be based on fact; it is legal to operate on genitals that are perfectly normal. For labiaplasty to be legal, all that is needed is that women choosing it should think that their labia are abnormal, so that this perception causes them sufficient distress as to constitute (or be portrayed as) a barrier to mental health. The result is that FGM is ruled out absolutely, even if genuinely freely chosen by an adult woman, but labiaplasty is permissible if it can be shown to be necessary for the patient’s mental health. In practice, FGCS is performed without legal sanction not only on adult women but also on children, meaning that parents are able to authorise FGM on their daughters if it is justified by aesthetics but not if it is justified by tradition.

Now, none of the foregoing adverts for FGCS explicitly refer to mental health, or state that they are able to operate only on patients with a mental health problem. The “distress caused by the perception of abnormality” wording allows women to access FGCS merely on the basis of choice, in practice. But that is not its intention. FGCS is legal in the UK only if the distress is sufficient to constitute diminished mental health. In other words, for FGCS to be legal, women have to be suffering. But surgery does not have to be the only way to alleviate their suffering. The Act merely requires that women’s distress be caused by the perception of abnormality; actual abnormality or pathology is not required. This wording may explain the predominance of negativity in the FGCS providers’ marketing material. The joyous ‘designer vaginas’ of MYA are on shakier ground.

Choosing to Be Normal

The desire to be normal is a crucial part of many patients’ decisions to undergo cosmetic surgery, whatever the procedure [6, 9, 16]. Commercial cosmetic surgery providers therefore benefit from encouraging prospective patients to think that their natural bodies are abnormal. They are ably assisted in this marketing strategy by a vast industry of beauty, fashion, media including social media, and pornography, all problematising the normal body – particularly if that body is female [1, 17]. For FGCS providers the stakes are particularly high: the legality of the practice depends on women thinking they are abnormal, and on that perception causing them significant distress. Because a vast range in the size of the labia minora is in fact perfectly normal [18], and the vast majority of women seeking FGCS fall within normal range [1, 19, 20], commercial providers of FGCS rely on women being falsely persuaded that there is something wrong with their genitals.

As we saw at the start of this chapter, FGCS providers often market the procedure by encouraging prospective patients to think that there is something wrong with their genitals. The providers refer to the “many women” who are distressed by their labia and highlight the popularity of FGCS. The paradoxical nature of the idea that it could be normal to have abnormal genitals does not matter if all that is needed is a perception of abnormality. The providers of FGCS thus present the surgery as normal and the natural female body as abnormal.

What counts as normal thus becomes a matter of subjective rather than objective fact, a matter of social norms rather than anatomical reality. Choosing to be normal is thus about choosing to conform to social norms rather than choosing to rectify clinical abnormality. The choice to be normal, like choice more generally, is socially constructed.

Social construction can be divided into two phenomena: the social construction of options and the social construction of preferences. Consider first the social construction of options. For an option to be chosen, that option has to be available as an option in the social context of the chooser. Labiaplasty and other forms of FCGS are relatively new procedures and their popularity has risen rapidly [9, 20]. Women can choose to undergo FGCS only if that procedure exists, technologically, and if surgeons are willing to perform it. The choice to undergo FGCS also requires GPs who are willing to recommend it and refer patients for it, or marketing to make commercial patients aware of it. It may also require the availability of finance for the procedure. All these factors are social: they depend on a particular social context in which FGCS is normalised and the natural vulva is pathologised.

The second aspect of the social construction of choice is the social construction of preferences. Women have to want FGCS if they are to choose it. For FGCS to be appealing, then the benefits it offers or the problems it alleviates have to seem more important than the costs it entails. The costs of FGCS are fairly straightforward: they include financial cost; the time spent in consultations, surgery and recovery; the pain caused by the procedure; the loss of highly sensitive erogenous tissue; and the risk of complications. The choice to undergo FGCS may involve an active attempt to minimise those costs – or, more precisely, to minimise patients’ awareness of the extent of those costs. There is evidence that cosmetic surgery providers do not always adequately ensure that their patients are fully aware of the costs and risks of procedures and that, even where they do, the message does not always get across [9].⁴ Certainly the value of intact labia is not emphasised. As an example, note the idea in the Medico Beauty Clinic website extract, quoted earlier, that labiaplasty removes skin that gets in the way of sexual pleasure, rather than that skin itself being a source of sexual pleasure.

But the choice to undergo FGCS also requires a sense that the procedure will be beneficial. For cosmetic surgery in general, and for FGCS in particular, the advantages are fundamentally socially constructed. FGCS has increased in popularity extremely rapidly, coinciding with the increased ubiquity of pornography, viewed online, and an accompanying strong norm that women should remove all their pubic hair [17, 22, 23]. These very recent changes provide the social conditions for the perception of labial abnormality. It is not surprising that women develop the sense that their labia are abnormal only in social conditions in which it is easy to view many other women’s labia, in pornography and unobscured by pubic hair [24, 25].

What is normal thus depends not simply on what is numerically common, or on what is non-pathological, or on what is well-functioning. The labia of women who choose labiaplasty are most likely neither uncommonly large, nor pathological, nor dysfunctional. What is normal is culturally relative. It may also depend on ignorance of the true prevalence of a particular trait, an ignorance that may be accidental or cultivated. Women can be concerned about the normality of their genitals without viewing pornography or adverts for cosmetic surgery: if a body part is deeply private, even taboo, then the lack of exemplars of that part can lead to ignorance, anxiety and doubt. In these contexts, increased visibility leads to a broadening of the concept of normality. But the increased visibility of vulvas in ever-more-accessible pornography (including the vulvas of women who have had FGCS), the norm for complete pubic hair removal and the intensive marketing of FGCS all lead to a narrowing of the concept of normal.⁵ Self-esteem, confidence and embarrassment are all emotions that relate intricately to social context.

Even those benefits of FGCS that relate to physical experience are socially dependent. Some women have FGCS to avoid the pain of tight trousers.⁶ If tight trousers were not fashionable for women, this problem would probably not arise. Once it does arise, the decision to solve it with FGCS rather than different clothes makes sense only in a social context in which women are encouraged to think of their bodies as naturally deficient, and in which women routinely are expected to place their appearance above their comfort and choose how they look over how they feel or how they are.

The fact that the benefits of FGCS are socially constructed does not mean that they are not real. That is to say, given the social costs and benefits of the practice in any particular context, it may be rational for an individual woman to choose FGCS. For her, it may be a surgery that makes sense to choose. But to make an assessment of the normative features of that choice – to know whether choice is properly treated as a normative transformer in this case – the question is: what social conditions have to be in place to make this choice a rational or comprehensible one?

In the case of FGCS, the social conditions required to make sense of the practice include the social value denied to women, the primacy attributed to women’s appearance, the centring of the pornographic, the subordination of women’s erogenous experience to their sexual confidence, the commercialisation of low self-esteem and the conscious and cynical manipulation of anxiety. FGCS will be chosen by women if they are encouraged to see deformity rather than beauty, and to seek solace in the scalpel.