Introducing fatness and law – Discrimination, disability, intersectionality

ABSTRACT

In view of increasing attention for the topic of fatness, discrimination, 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. The paper 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. The article 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 the light of the fact that fat activists have fought the medicalization of fat bodies for 40 years now, it is argued 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. – 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.

KEYWORDS:

• Fatness
• law
• discrimination
• weight discrimination
• anti-discrimination law
• comparative law
• disability
• social model of disability
• intersectionality
• post-categorial anti-discrimination law

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Massachusetts has introduced a bill to protect against discrimination on the basis of height and weight in the legislative period 2019/2020, https://www.hsph.harvard.edu/striped/fighting-weight-discrimination-in-massachusetts/. When this article went into press it hadn’t been voted on yet (bill S.2495).

2. Also, there are a number of cities and states around the world that subsume “weight” under “physical appearance/features” or “disability” (e.g. Victoria, Australia [VIC Equal Opportunity Act 2010]; Madison, WI, USA [Madison City Code]; Urbana, Ill, USA [Urbana Human Rights Ordinance]; Washington, D.C., USA). More on the pros and contras of subsuming “weight” under other categories see von Liebenstein (forthcoming).

3. This was a serious problem in Germany until 2013 when the Supreme Administrative Court (BVerwG) decided to drop the hurdles for civil service candidates (BVerwG, 2013, October 30 – 2 C 16.12, BVerwG, 2013, December 13 – 2 B 37.13).

4. Tobler (2005) and Wentholt (1999) (both quoted in De Vos (2007, 10) also diagnose this to be the case for the European Court of Justice (hereinafter: ECJ) that for over forty years has consistently defined discrimination as the “application of different rules to comparable situations or the application of the same rule to different situations” (De Vos 2007), thereby expressing a formal, procedural approach to equality rather than a “positive action” approach.

5. Belgium: Loi tendant à lutter contre certaines formes de discrimination, 2007, C−2007/02099. France: Code Pénal, Art. 225-1 to 225-4 CP. Finland: Criminal Code, Sec. 11. Luxembourg: Code Pénal, Art. 454 ff. Spain: Código Penal, 1995, Art. 314.

6. At least in absence of a law regulating aisle or seat widths.

7. The need to add a “subjective” arises in French and German because the terms “le droit” and “das Recht” are terms that can be applied to both law and rights.

8. Namely i.a. Australia, Belgium, Canada, Chile, Costa Rica, England, Ethiopia, Finland, France, Germany, Ghana, Greece, Guatemala, Hong Kong, Hungary, India, Ireland, Israel, Madagascar, Malta, Mauritius, Namibia, Netherlands, Philippines, Portugal, Spain, South Africa, South Korea, Sri Lanka, Sweden, USA, Zambia, and Zimbabwe (Degener 2005).

9. Many people now prefer the term “critical disability studies” (Meekosha and Shuttleworth 2017).

10. While, at the same time, there is also the risk that the label “disabled” is perceived as an appropriation by disabled people who may be in opposition to this kind of colonization of their experiences (Cooper 1997).

11. ArbG Darmstadt (Labour Court Darmstadt, Germany) 2014, June 14 – 6 CA 22/13.

12. The social model of disability articulated by the Supreme Court of Canada has been followed in many Canadian appellate court and Human Rights Tribunal of Ontario (HRTO) decisions and has paved the way for lawsuits related to weight discrimination as disability discrimination, including, but not limited to, the case law following the “One Person, One Fare” policy introduced in 2009 by the Canada Transportation Agency (CTA) for Canadian airlines. For more on this, please refer to the article by Rinaldi and Rice in this volume.

13. DeGraffenreid v. General Motors 558 F.2d 480 and 145 (8th Cir.1977), cited in Crenshaw (1989, 383).

Additional information

Notes on contributors

Stephanie von Liebenstein

Stephanie von Liebenstein, MA (English, German, Philosophy), stud. iur. (Law), founded the German Association against Weight Discrimination (Gesellschaft gegen Gewichtsdiskriminierung e.V.) in 2005. 2011-2014 member of the editorial board ofFat Studies (ed. E. Rothblum); 2016 expert on weight discrimination at the Convention on the Evaluation of the General Equal Treatment Act (2006) hosted by the German federal antidiscrimination agency. Numerous publications, presentations and appearances in the media; editor of the Fat Studies special issue “fatness and law” and host of the International Weight Stigma Conference 2021 (Berlin). The academic editor, writer, activist, and legal scholar lives in Berlin, Germany.