When the Law Is Right but the Approach Is Wrong: Virginity Testing in France
Note:
Written in spring 2024 for a human rights course — my final quarter of graduate school. The paper is addressed to France's Minister of Health and Solidarity. The subject is virginity testing: a practice that France has legally banned but cannot meaningfully enforce, in part because the ban is entangled with broader anti-Muslim secularization policies that have made minority communities resistant to state intervention of any kind. The most honest moment in the paper is the gynecologist who issues the certificates anyway — because refusing means sending women back into situations where violence is the alternative. Law and harm reduction are not always the same thing. I thought it would be fun to add in a "translation note" -- even though I obviously didn't write it in French.
To: Catherine Vautrin, Ministre des Solidarités et de la Santé
From: Megha Sanjay, Minister of Globally Concerned Women
Re: Tests de Virginité & les Droits des Femmes
[Translation Below]
Virginity Testing in France: Meeting Legality with Reality
Executive Summary
Virginity testing is an ongoing issue in France, predominantly within immigrant and minority communities, and is a challenge that must be addressed for the health and safety of the overarching population. While legal reforms have been passed to ban testing and fine medical practitioners issuing tests, the methodology to approach this situation is not ideal, as it exacerbates social divides and discrimination while increasing the risk for women to face violence or unsafe testing methods. There are several key actors, including the government and healthcare professionals, but importantly minority communities, as they have been left out of the conversation. This is not an issue of passing laws, but enforcement ability and changing of norms. Even as France pushes for secularity, cultural resistance will not fade away, so a different approach is needed. To effectively combat virginity testing and the slippery slope of other violations against women, public awareness campaigns, support for survivors and healthcare professionals, education, and engagement with community leaders to address social norms is needed. The recommendations here aim to connect legal action to reality to ensure that the dignity of French women, regardless of background, is upheld.
Issue Overview - Global
Virginity, often tested by the structural integrity of the hymen or bleeding upon marital consummation, is not a medical term. Yet the emphasis on female premarital virginity as a sign of purity and social acceptance pervades society globally, leading to sham medical testing and dangerous cosmetic procedures to meet the standards set relating to female genitalia. As such, it is a pervasive human rights issue that coerces -- overtly or subliminally -- women around the world into subjecting themselves to gross invasions of their personal autonomy. It’s referred to as “rape by instrument,” wherein “two fingers or a speculum are inserted into the vagina in search of the hymen or to measure the elasticity of the vaginal walls, neither of which can demonstrate whether or not someone has had intercourse”. Thousands of women are tested yearly, and are often ”sanctioned by doctors, hospitals, courts, and governments and carry tremendous and sometimes fatal punishments for women”.
Intergovernmental agencies have decried testing and the various associated violations -- such as female genital mutilation, maternal mortality, and the lack of reproductive education -- which indicates a strong support for addressing this issue. In 1993, the Vienna World Conference on Human Rights and Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) both stated that testing violates human rights -- including the “right to the highest attainable standard of health”. In 1994 the ICPD stated that the world should focus on “Eliminating all practices that discriminate against women… including those that relate to reproductive and sexual health,” and that the “discriminatory and stigmatizing nature of the virginity examination also results in a series of adverse psychological and social traumas.”
Beyond the personally traumatic nature of this violation, women who “fail” these tests are often subject to threats and violence, sometimes resulting in fatalities. For examples, a Moroccan student in hiding in London stated that “her father had hired someone to murder her” after finding out about a past relationship and subsequently discovering “her hymen was no longer intact”. In 2018, the World Health Organization (WHO), UN Human Rights, and UN Women released joint statements directed at governments to enact legal bans. Following this, several countries have adopted more stringent laws and regulations regarding the tests, including big violators like Afghanistan, which finally passed a 2018 penal code “criminalizing virginity testing, though the exams were still deemed legal when ordered by a court or when a woman consented,” a drastic improvement from previous frameworks.
Given the “willingness” of participants, it may not seem as though this is as prevalent of an issue or that Europe has no hand in the violations. Yet virginity testing occurs in several European countries, particularly within those with high immigrant populations or conservative religious groups. The prevalence of the issue is juxtaposed with the continual calls and legal reforms to end virginity testing. The question then is how to approach the enforcement issue, given the variances in socio-political landscapes. Traditionally “developed” countries, such as those in Europe, have a unique situational advantage of normative power -- with a major hindrance being the diversity of enforcement mechanisms and minority communities. Thus models of enforcement and normative changes can serve to influence other nations struggling with the same human rights violations. France, with its large Muslim and other minority communities, has an opportunity to set an example on the global stage, especially given the backlash regarding recent secular policies that are seen as exclusionary or racially charged.
The Issue in France
While it is not as common in France as in other countries, about 30% of doctors reported being asked for documentation -- with most refusing. While numbers may not be in the thousands (and data is not collected on exact numbers), it is common for Muslim and some Roma families to ask for proof of premarital virginity. One gynecologist -- Dr. Ghada Hatem -- stated that most often girls from the Muslim-majority North-West African regions will approach for documentation. She stated she will provide “such certificates for women and girls who feared physical violence from relatives or family dishonor. If they say 'my brother will beat me up, my dad will strangle me, my in-laws will ruin my family's reputation' [she has] no reason to disbelieve them," and prioritizes the safety of her patients above potential legal repercussions. As with many other countries, virginity testing is associated with false ideas of medical accurateness -- such as the fact that the hymen is an indicator of premarital sex -- as well as patriarchal norms.
Thus the crux of the issue is the battle between legal and social norms, as secular ideology invalidates cultural relativism, ignoring the realities of a significant portion of society. As such, looking at precedents from a cost-benefit perspective will explain the persistence of this human rights violation and inform the necessary recommendations.
Legal Precedents
France is a signatory to CEDAW, which explicits condemns practices like virginity testing. The European Union’s regional directives on gender equality are a second support to France’s legal approach. Positively, France is vehemently against virginity testing, but this comes with the caveat that comprehensive laws are not enough for enforcement. In fact, the 2021 Separatist Bill, with a clause that “prohibits all health professionals from issuing certificates of virginity,” has sparked controversies both political and health-related, as it appears socially discriminatory against Muslim groups. However, the explicit prohibition of virginity testing within this bill, coupled with the punitive measures for healthcare providers found guilty of issuing these tests, provided a foundation for change regarding this issue. In fact, physicians could be jailed for up to a year and be fined €15,000, and some have pushed for punishment for “those who demand tests, such as parents or fiancés”.
However, this primary mechanism of influence -- legal penalties -- cannot deter the practice because of cultural resistance. This builds upon existing pushback against France’s secular policies and often anti-minority stance on issues, . President Macron’s statements claiming that some Muslims in France were “at risk” of creating a “counter society” has increased accusations of Islam-specific repression,. In fact, within CEDAW, France stated its main reservations against Muslim majority countries, and while the argument against reserving women’s rights based on the laws of Islam can be seen as logical, it distances the current government from its citizens. Legal frameworks thereby fall flat because of the lack of legitimacy with the surrounding controversies -- and any attempts to enforce health and safety initiatives (that go beyond Muslim communities) will not succeed with the current approach.
Social Precedents
Majority populations and lawmakers condemn this practice, which means that legal precedents have found solid support for punitive measures. For instance, Marlène Schiappa, the Minister for Citizenship, expressed outrage against the reality TV show “Incredible Gypsy Weddings” and its “unquestioning tone” about virginity tests as a requirement for marriage. The bridal examination by female relatives was explained by community members as important for the boy’s family to show he “has taken a beautiful woman who is a virgin”. Schiappa highlighted the need to challenge these norms, especially given the blatant disregard for the National Assembly’s vote for a law “banning virginity tests and assuring the consent of both partners to a marriage”. President Macron, of course, has also been vocal about efforts to increase secularity in France -- and has expressed keen support for protecting women’s rights.
In a broader sense, French society’s view on virginity and sexuality can alienate minority communities with more conservative ideas. In fact, there is a generally strong emphasis on sexual autonomy -- verging on hypersexuality and stigmatization of those who remain virgins into their 20s, . While the inherent “progressiveness” of French society is not problematic in itself, this can contrast sharply with the mindsets of some immigrant or minority communities -- especially where virginity is a marker of family honor or purity. The cultural clash can lead to alienation and resistance for legal frameworks. Even as the national “identity” rejects practices like virginity testing, it creates an environment of tension that can lead those with more traditional views to double down on these violations. This means that cultural relativism and respect have to be considered in order to enforce broader legal and majority social norms within minority groups.
Recommendations
Enforcement and Mitigation
Despite the French government’s strong legal stance against virginity testing, enforcement remains a significant challenge, compounded by deep-rooted cultural norms and accusations of discrimination. A large issue with penalizing healthcare workers who provide virginity testing is that these certificates are often the only barrier between these women and violence. They can “help protect women who are suspected of having illicit sex from possible retribution,” especially in immigrant communities -- dealing with this issue must be from a normative perspective, not prevention from potentially life saving options. Dr. Ghada Hatem, also the chief medic at the Maison des Femmes, a women’s violence shelter, stated that closing this door is “undoubtedly promoting a black market for certificates that dubious pharmacies will charge dearly for”.
Incentives to Change
The government has several incentives to enforce the laws against virginity testing, as this indicates a strong willingness to uphold gender equality. However, if they are not enforceable, and face backlash, it decreases the legitimacy of the government and its ability to uphold human rights. Healthcare providers face a different conflict: adherence to legal standards while navigating cultural or safety barriers within communities. Given the widespread “western” values of sexual rights, it becomes difficult to respect cultural values and approach the situation delicately. Many may argue that physicians should comply with the request for a virginity test “under certain conditions” and may either provide a simple signature sans test or perform a comprehensive sexual evaluation beyond this invasive process. As such, healthcare professionals are often unsure of how to proceed in these situations.
Contrastingly, the communities that perform these tests are incentivized to resist legal frameworks because of the compounded feelings of discrimination rampant in France. Human rights organizations and community leaders have the capability to influence public opinion but are complicated by social pressures to resist the broader secularization of the nation. Main critics of the legal frameworks, especially the clause in the 2021 bill, argue that this is targeting the Muslim community directly, increasing resistance. However, this feeling is not necessarily unanimous, as the law was written by consulting representatives from all religions in order to create “respect for the principles of the Republic,” including an idea of national unity rather than anti-secularism. In fact, Ghaleb Bencheikh, head of the Foundation for Islam of France, stated that the “law was ‘unjust but necessary’ to fight radicalization” and other social issues.
Model for Improvement
Given that this human rights violation is an enforcement issue, coupling legal frameworks from a ground-up social support mechanism is the only way to make it effective. These recommendations draw inspiration from a different human rights violation, Female Genital Cutting (FGC), as a model in Senegal proved effective in mitigating the issue socially when legal routes were ineffective. This model utilized Tostan’s Community Empowerment Program (CEP) in order to educate community members to recognize FGC as a human rights violation, which allowed them to engage in discussions. This was then extended to include religious leaders like Imams to discuss how FCG was not a religious requirement, and was detrimental to the health of society as a whole. Engaging with community leaders and organizations, thereby, is vital to address the cultural resistance to abolishing virginity testing. Initiatives that promote dialogue and education within communities can help shift cultural norms and reduce the social pressure to perform virginity tests.
Secondly, targeted public awareness campaigns are essential to educate immigrant communities about the legal and human rights implications of virginity testing. Collaboration with NGOs and human rights organizations can amplify the reach and impact of these campaigns. Of course, these campaigns will face resistance from communities, given the entrenched nature of virginity testing -- overcoming this requires more than “information dissemination.” Additionally, if there are barriers to reach, such as language and literacy, it may not get to the intended audience -- and communique has to be crafted in a sensitive matter to limit backlash. Ensuring the education programs are standardized and uniformly implemented across diverse regions and communities is also challenging.
However, public awareness campaigns will also allow for the establishment of support services for women at risk of or subjected to virginity testing services should include counseling, legal assistance, and safe spaces for victims. One caveat is women seeking help may face stigmatization within their communities, deterring them from using these services.
Additionally, training programs for healthcare providers should be developed to equip them with the skills and knowledge to resist pressures to perform virginity tests and to support victims effectively. One big issue here is that rationally, it is difficult to do an impact assessment on whether or not healthcare providers or external actors see a decrease in testing requests. This is because of the general lack of data relating to this subject, as well as potential reluctance from healthcare providers who fear punitive measures.
Another key to improve enforcement is to attempt to separate this specific clause from the 2021 bill as a whole and emphasize its importance as a health policy bill rather than part of the attempt to secularize the nation. Conflating issues such as discrimination with actual health and safety measures is a large reason for enforcement failure. Several NGOs, such as ANCIC, support the government’s stance, but warned that “a ban would simply deny the existence of such community practices, without making them disappear,” and that educational and social reforms are critical to “inform, discuss, prevent and give support,” hopefully mitigating the issue from the root.
Generally, these recommendations provide a pragmatic approach to tackling the human rights violation of virginity testing in France. While support may be garnered from human rights organizations, political actors, and moderate community leaders, opposition will certainly come from conservative community members. Even so, structuring the approach from a culturally sensitive perspective should help mitigate resistance. Each recommendation varies in feasibility, with public awareness campaigns and education programs being relatively achievable in the short term, albeit resource-intensive. The main trade offs include resource allocation and compliance lengths (short versus long term) in order to navigate the balance between healthcare and secular policies. Even so, these are foundational to meaningful progress for women’s rights and gender equality in France.
Conclusions
The persistence of virginity testing in France, despite strong legal frameworks, highlights significant enforcement challenges and cultural resistance. The proposed recommendations aim to strengthen the enforcement of existing laws, raise public awareness, provide support to victims, and engage with communities to shift cultural norms. While they are tailored to France, this provides a clear model that can be adapted to other countries within Europe and eventually the world. By modeling true human rights mitigation efforts, France can distinguish itself and legitimize the current government, thereby improving both political and social causes in one strategy.
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