As a Matter of Fat

The city's new weight discrimination law is badly reasoned, legally defective, costly, and bad for public health

Comments (0) By Peter Byrne Wednesday, Jan 17 2001

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A 16-year-old girl elicited gasps of outrage from the audience when she talked about receiving ego-bruising comments about her size from a nurse practitioner, instead of the basic gynecological services she desperately sought. Others talked about being redlined by HMOs and passed over for job promotions because of their weight.

Sondra Solovay, author of Tipping the Scales of Justice: Fighting Weight-Based Discrimination, spoke about working undercover for the U.S. Department of Housing and Urban Development to ferret out weight discrimination in housing. Some landlords would not make eye contact with her, she said, let alone rent an apartment to a fat person.

Akim Aginsky

Marilyn Wann, author of Fat!So?, and a leader in the fight for the city's weight ordinance.

Peter Byrne

Krissy Keefer has filed a size discrimination complaint against an S.F. ballet school on behalf of her 8-year-old daughter.

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Wann told the supervisors that weight is 80 percent genetically determined and that most scientific studies show no correlation between weight and health. She assured the supervisors that the legislation would cost almost nothing; the price of implementation would be "the cost of a couple of [armless] chairs [for fat people]."

Board President Tom Ammiano was convinced. He declared: "Being of a certain height and weight, race, gender, and sexual orientation is purely genetic." The supervisors voted unanimously to give the same legal protections to the fat, tall, short, and thin as the government has extended to, for example, the descendants of slaves.

The move may have seemed a logical, reasonable, humane reaction to discrimination against the obese. Actually, however, in broadening the law, supervisors seem to have ignored much of the legal reasoning behind existing discrimination law; to have enacted protections that have serious legal defects; to have created law that could, if implemented fully, heap untold costs on a wide variety of private-sector businesses; and to have given strong legal protection to a changeable physical condition that is, in the view of most nutrition scientists, bad for public health.

In general terms, according to a wide variety of legal scholars, American anti-discrimination laws are aimed at protecting individuals from significant unfair social or economic treatment that is based on personal characteristics over which the individuals have no control. These general precepts -- that discrimination must be proven as significant and based on immutable attributes -- are the product of constitutional reasoning and federal court rulings made since the U.S. civil rights movement began in the 1950s.

But San Francisco's supervisors adopted the new height and weight provisions, even though advocates of expanding the city's discrimination law provided no definitive evidence that obesity (or any category of body weight) is essentially immutable, or largely a matter of genetics. (Much of the available evidence, in fact, points in the direction that obesity is not immutable, in the way that skin color, ancestry, or place of birth are.) Nor did they prove that weight discrimination is a serious, well-documented social problem in San Francisco or elsewhere. (The evidence presented was entirely anecdotal, and, as such, statistically meaningless.)

And although a deputy city attorney publicly testified in favor of the new categories, the City Attorney's Office wrote a private letter to the supervisors cautioning them that state anti-discrimination laws supersede local ordinances, possibly making the new height and weight categories unenforceable.

The first San Franciscans to avail themselves of the new size discrimination ordinance are 8-year-old Fredrika Keefer and her mother, Krissy, a muscular ex-ballerina who operates the Dance Mission school and performance space. In November, Krissy filed a complaint with the San Francisco Human Rights Commission alleging that her daughter had been rejected for admission to the San Francisco School of Ballet because of her weight, height, and sex. Keefer targeted the ballet school's requirement that students have a "slender, well-proportioned body," archable feet, and hips that turn out at the joint, à la penguins'. Keefer says she is prepared to file a civil rights lawsuit, too, unless Fredrika is admitted to the school.

As network television crews began banging on Dance Mission's door, the ballet school's lawyers contemplated how to best skewer Keefer's charges. It seems likely they will be successful, because the now-controversial law is ridden with technical flaws.

U.S. anti-discrimination laws are underpinned by the equal protection clause of the 14th Amendment to the Constitution, the Civil Rights Act of 1964, and legal precepts that have emerged from rulings made during the past half-century by the United States Supreme Court. According to many legal scholars (including fat activist Solovay) these laws are primarily intended to protect people from discrimination based on personal characteristics over which they have no control. The main classes protected by federal law are race, color, religion, sex, national origin, and disability. Some state and local legislators have extended these protections to include other categories seen as unchangeable, such as place of birth or sexual orientation.

Legal experts say that a city may adopt a policy of not discriminating against a changeable condition, such as weight, but once that city starts to enforce the policy as law it opens itself up to lawsuits.

But the legal theory is clear: In order for a law that protects people from discrimination based on a particular category to be enforceable, its proponents had to show a history of harmful discrimination based on an unchangeable characteristic. The requirement for immutability is based on general notions of fairness and equal protection. There is an inherent recognition in the law that it is unfair to discriminate against people for conditions they cannot change. The flip side of this argument is the legal realization that when a characteristic is mutable, the subject of "discrimination" has the ability to limit or eliminate the unfair treatment on his own and does not, therefore, need the most powerful protections discrimination law provides.