Legislating Virginity: The Law and Ethics of Hymenoplasty and Virginity Testing

Abstract

According to Merriam Webster, the definition of a ‘virgin’ is someone who has never participated in sexual intercourse. This definition revolves around heterosexual relationships and the assumption that the intercourse will involve a person with a penis and another with a vagina. However, what one considers sexual intercourse can vary from person to person (for example, whether oral sex is included) and the definition incurs greater difficulty when linked to anatomy, specifically the hymen. The hymen is a thin membrane of skin near the opening of the vagina, which consists of leftover fragments of tissue formed during foetal development, found only in female mammals. The presence of the hymen still holds significant importance in most religions as it is believed to determine a woman’s ‘purity’ and ability to marry, an essential factor for their position within their community, due to the commodification of female virginity. Consequently, women often face violence when they are accused of not being a virgin, or are found to have a hymen which is not intact. Due to the gender binary being imposed by the concept of virginity, this essay assumes that most people with hymens identify as women, whilst still acknowledging that trans*, non-binary and intersex people can also share this anatomical feature. This essay will discuss the cultural practices that encourage virginity testing and hymenoplasty, followed by an analysis of potential harm-reduction solutions with reference to the historical and religious background which places virginity as a gendered concept. Whether the measures put in place by the Health and Care Act 2022 are sufficient in preventing the violence against women which stems from practices surrounding virginity will be discussed in the context of the practical realities of virginity testing. This idea will be explored within the framework of the UK’s legal system with reference to other European jurisdictions for context.