Legislating Fatness

Current Debates in Weight Discrimination, Policy, and Law

Stephanie von Liebenstein, Stephanie von Liebenstein

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000625790
• Edition: 1
• Topic: Droit
• Subtopic: Droit médical

Discrimination based on body weight is an underestimated and widespread problem. There is not a single national law worldwide that prohibits weight discrimination, but quite a number of laws and policies that reinforce, or at least reflect, the existing socially ubiquitous weight stigma.

This volume focuses on where and how fatness and law intersect, discussing current anti-discrimination protections related to fatness; the ongoing debate around the introduction of new anti-discrimination categories; national and international principles that seem to argue against the introduction of legal protection of fatness; the question whether fatness should be considered a disability; and weight stigma in legal practice. Starting from a fat studies perspective, this book also considers the legal implications of anti-discrimination legislation for fatness through an intersectional lens, noting how fatness often overlaps with other marginalized identities, including race and ethnicity, gender, and socioeconomic status. This book will be of interest to both professional and lay audiences, providing an introduction into the legal aspects of weightism, as well as offering solutions for legislative practice. It will be an invaluable resource for everyone who would like to be more weight-sensitive in their legal work.

The chapters in this book were originally published as a special issue of Fat Studies: An Interdisciplinary Journal of Body Weight and Society.

Fatness, disability, and anti-discrimination law: an introduction to the basic concepts^*

Stephanie von Liebenstein

ABSTRACTIn view of increasing attention for the topic of fatness, discrimina- tion, and law, there is a rising international demand for the inclusion of the protection category “weight” in anti-discrimination laws. However, what is often overlooked is the complexity of the juridical debate. The definition of “discrimination”, for example, varies in laws internationally, and the effectiveness of anti- discrimination clauses depends strongly on whether they are contained in e.g. criminal law, civil law or constitutional law. This introduction tries to shed light on some of the ambiguities in the debate, in particular whether fatness should be a subset of the discrimination category “disability”, taking the social model of disability as a basis. It argues that the social model of disability and its focus on a socio-dynamic definition of disability is very often misunderstood as not requiring an “impairment” to be applicable in the first place. In light of the fact that fat activists have fought the medicalization of fat bodies for decades now, the author makes a case that it would ultimately be inconsistent for fat activists and fat studies scholars to push the concept of fatness as a disability in its own right. The ADA (American with Disabilities Act) “regarded as” prong is also taken into account. – Another light is shed on how intersectionality can be represented legally. The article ends with a suggestion of what an anti-discrimination law protecting fat people should ideally look like, and exemplifies which areas of “fatness and law” might, among others, be worth working on.

Weight discrimination – disadvantageous treatment based on a person’s body weight – is a problem that is as widespread as it is unrecognized not only by society, politics, and the media, but also by the overwhelming majority of researchers. Even those who study the social determinants of health or oppression systems within society like racism, sexism, and ableism hardly ever take note of weightism despite its prevalence. Indeed, not only in the US have the numbers of reported weight discrimination risen constantly since at least 1996 (Andreyeva et al. 2008), to the point of being as high as the rates of racial discrimination in the US (Puhl et al. 2008). The situation is similar in many other countries like Denmark (Greve 2008), France (Huggins 2015), Germany (Hilbert 2008), Greece, Iceland, Korea, Portugal, Spain and Sweden (Puhl et al. 2015, with further references). Fat people¹ face weight discrimination in almost all areas of daily life, from bullying in the school yard to negative representation in educational material, from lack of access to institutions of higher education, disadvantages in the job recruitment process and employment settings to de-humanizing representation in the media and in advertisement, stigmatization in health care, access to fitting public accommodations and to suitable consumer goods, especially fashion (Puhl, Heuer 2009). In employment settings, fat people are regularly confronted with a whole plethora of unfair practices in hiring, salary, promotion prospects, and job termination compared to thin colleagues, and also often bullying (Rudolph et al. 2009). In France, 70% of fat people complain about repeated weight discrimination in the public sphere, at school, at work, at home, and even in health care settings (Odoxa 2020). In employment, weight is the one most prevalent ground of discrimination in the very prominent French “physical appearance” category which affects most employment-related discrimination cases (Défenseur des droits 2020).² In the UK, fat women are treated particularly unfairly in job settings, facing a wage penalty of several hundred dollars per year for every additional BMI point (Tyrell et al. 2016). In Germany, they are usually not being considered for high-esteem jobs like lawyer and CEO even if they have the necessary qualifications (Giel et al. 2012).

^* This introduction is an updated, revised and expanded version of my introduction to Fat Studies. An Interdisciplinary Journal of Body Weight and Society. Volume 10, 2021 – Issue 2: Fatness and Law (ed. Stephanie von Liebenstein).

However, there are only few places in the world where there is explicit legal protection against weight discrimination. This includes the state of Michigan and the cities of San Francisco, California; Santa Cruz, California; Washington, D.C., and Binghampton, New York in the USA that number “weight” among their categories protected against discrimination in their municipal codes or (in the state of Michigan) in the Elliott-Larsen Civil Rights Act of 1976.³ The Icelandic capital Reykjavik, being the first in the world outside the U.S., also has a Human Rights Policy which names “height and weight” directly as protected categories (Art. 6, revised version 2016).⁴

There are a number of places where “physical appearance” or “physical features” is a protected discrimination ground, like France (Code Pénal); Belgium (Loi tendant à lutter contre certaines formes de discrimination); the state of Victoria, Australia (VIC Equal Opportunity Act 2010); Madison, WI, USA (Madison City Code); Urbana, Ill, USA (Urbana Human Rights Ordinance); and Washington, D.C., USA (District of Columbia Human Rights Law). While some of the relevant antidiscrimination agencies (like the Défenseur des droits in France (2016) and the Victorian Equal Opportunity and Human Rights Commission (2021)) explicitly mention weight discrimination as an instance of physical appearance or physical features discrimination, this does not mean that a category named e.g. “physical appearance” has proven particularly effective for fat people so far (von Liebenstein 2021).

Time and again fat activists and scholars of various disciplines have demanded that fat people enjoy legal protection in a similarly explicit manner elsewhere by including “weight” as a protected category in anti-discrimination law. What sometimes gets lost in this important debate, however, is its legal complexity. Often there is a lack of knowledge about the basics of legal protection against discrimination, even of what “discrimination” actually means, which legal fields and issues may be affected when a person is discriminated against because of their weight, and what difference it makes whether an anti-discrimination provision is incorporated into constitutional law, criminal law, private law or civil rights laws. My focus in this article is thus not so much on providing a comprehensive introduction into the topics of fatness and law – I have already done that in my article “Fatness, discrimination & law – An international perspective” in The Routledge International Handbook of Fat Studies (von Liebenstein 2021) – but rather to discuss a few terms that help to understand these topics. In addition, I will touch upon some issues that I believe have so far been discussed without full appreciation of their inherent complexity. Topics will be the concept of discrimination in all its forms; weight discrimination and the legal areas in which it may take place; the difference between anti-discrimination clauses in civil law, public law and criminal law; discrimination categories and post-categorical law; the debate about fatness as a disability in its own right; and intersectionality. The lodestar of these very disparate topics will be the question of what has to change for fat people to enjoy effective legal protection against weight discrimination.

When people hear or read about weight discrimination, this usually refers to the employer-employee relationship or about injustices in the recruitment process. Weight discrimination, however, does not just pertain to labor law, but also to many other areas of civil and administrative law. This includes instances when fat people are made to pay for two airline seats, are not being served in restaurants, are denied treatment at the medical practice, are excluded from Boy Scout camp (Overweight Advocates 2013), sign a prenuptual agreement declaring that they will not gain any weight (Dewberry v. George 2003), are rejected by a university because of their weight, are not allowed to enter civil service,⁵ are excluded from jury duty (People v. Wynn 2004), or cannot get an extension of their work visa because of their weight (South African chef 2013). Questions of health insurance law or child and youth welfare law may be affected if fat people are denied health insurance, forced to accept disadvantageous insurance tariffs, or when parents lose custody of their child because of their child’s weight. Last but not at all least, weight discrimination can also become criminally relevant when fat people are bullied, insulted or assaulted.

Fat discrimination and law in fat studies literature and beyond

The fact that there is generally no or only inadequate legal protection against weight discrimination has alarmed activists and fat studies scholars for decades. Esther Rothblum, editor of the groundbreaking The Fat Studies Reader, pointed out employment discrimination and employment-related victimization as early as 1990 (Rothblum et al. 1990). Ten years later, Sondra Solovay dedicated an entire book (Tipping the Scales of Justice: Fighting Weight-Based Discrimination) to weight discrimination and the legal system in which she also discussed the question of whether fat people should have legal protection and whether the existing protected class of “disability” is suitable for fat people to rely on. She covered a wide range of areas from the question of whether parents are legally responsible when a child becomes fat, to medical malpractice, denial of public access, and discriminating public policy.

It was Anna Kirkland who first systematically worked through the legal theory of weight discrimination and who devoted an entire book (2008) on Fat Rights: Dilemmas of Difference and Personhood. Her approach is to place weight discrimination in the wider context of the civil rights tradition and to discuss weight as another candidate for a class protected under antidiscrimination law, highlighting the differences and similarities between weight and traditional discrimination classes such as gender, race, and disability. Kirkland is one of the most vocal voices in the debate; she has published extensively on fatness and law from a non-stigmatizing perspective.

Tirosh’s (2012) article “The Right to be Fat,” in turn, argues not only for protection against discrimination but for the right to be fat as a fundamental right, similar to the right to free speech. She argues that in a country in which a great number of highly personal decisions such as marriage, religion, procreation, and education are domains of rights protected by constitutional law (like most other fat studies scholars, she talks about the USA here), the (fat) body should be a domain of rights as well: as part of personal liberty, autonomy and dignity.

Cooper (1997, 2009, 2016), Herndon (2002, 2021), Harjunen (2004) and Mollow (2015) have, among others, contributed significantly to the debate about whether fatness should be recognized as a disability. Their work will be discussed in the course of this introduction.

Many insights into the legal side of weight discrimination, however, stem from scholars working in what might be termed “Critical Obesity Studies” or even just “Obesity Studies”; that is, they conduct valuable research into the workings of weight discrimination – sometimes employing a “critical” sociological perspective – but are usually embedded into an “obesity prevention and counteraction” background. Their scholarship is highly relevant for those from a fat studies background interested in improving the legal situation of fat people.

Many useful (also international) studies have, for example, been conducted by Rebecca Puhl and her research group (Pomeranz and Puhl 2013; Puhl and Heuer 2011; Puhl et al. 2015) and also Anja Hilbert and Claudia Luck-Sikorski and their stigma research groups (e.g. Spahlholz et al. 2016), although they all work in settings that can be called at least averse to fat acceptance. I am personally of the opinion that there should be more of an exchange between scholars in the fat studies community and those whose work is funded by institutions that support “obesity” prevention and counteraction. While I’m convinced we should by no means tolerate discriminatory terminology or thought, I think research by people for whom fatness is problematic may still be extremely relevant and useful for our own research and activism goals.

Nevertheless, there are still numerous gaps in the debate that can only be filled through further research. In particular, I hope that international lawyers, legal scholars and other legal professionals will be sensitized to the topic and write research that will not only be received by other scholars but that makes the legal mainstream take notice, allowing it to influence judicial decisions.

What is “law“, anyway?

In 2009, Charlotte Cooper rightly complained that fat studies were still far too often “Fat American Studies.” In order to counter this centeredness on the US this volume takes an international approach. In addition to contributors from the US, voices from New Zealand, UK, Canada, Iceland and Germany have their say. Because of this diversity (still far too small and largely English-language), questions around the basic terms used in this debate arise in a much more complex way than if only one national legal culture were to be scrutinized.

The first question in a law-centered volume must of course be: What is law, anyway? And since the answers to this question can be as varied as the different legal ...