As a Matter of Fat

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.

One of the main arguments fat activists put forward to support their theory that weight is often, or by and large, an immutable characteristic involves the assertion that diets do not work. And most responsible nutrition scientists now admit that miracle weight-loss diets -- especially of the no-carbohydrate, all-protein variety -- are empty moneymaking schemes. People who starve themselves through fad dieting do, indeed, tend to gain back the lost weight within a period of weeks, months, or years. There are, however, healthy ways to lose weight that will work for the vast majority of people; the failure of what fat activists call the "diet-pharmaceutical industrial complex" to perform as promised is certainly not proof that fatness is destiny.

Fat activists often cite one scientific study -- a 1986 trial conducted on Danish adoptee twins by Dr. Albert Stunkard -- as proof of their claim that body weight is 80 percent determined by heredity. Newer studies, however, have largely debunked the 80 percent figure, finding genetic influence on body weight to be about 33 percent. It turns out, too, that a person's genes do not consign him or her to be fat, but affect how fat is distributed through the body. In other words, according to a widely held scientific consensus, social and environmental factors are nearly 70 percent responsible for the creation of body weight. That means that most people can choose to lose or gain weight, even though the act of doing so may be difficult, and that weight is not the type of immutable characteristic ordinarily protected by strong discrimination laws.

Dr. Dean Ornish, 47, is a clinical professor of medicine at UC San Francisco. He is famous for his path-breaking research showing that heart disease can be reversed by changing lifestyle -- that is, by limiting the amount of saturated fat, especially animal fat, in one's diet; by eating grains, vegetables, and fruits; and by exercising regularly. One delightful byproduct of adopting such a lifestyle -- even if one does not suffer from heart disease -- is its effect on weight: The body gradually finds a comfortable, usually lower weight. And a loss of just 5 to 10 percent in body weight has been shown to significantly improve health for the obese.

Ornish and a handful of others, such as Dr. Nathan Pritikin, have been only mildly successful in popularizing healthy habits to a couch potato culture maddened by the taste of blood, sugar, and grease. The physiology of fat holds many mysteries. Still, the best science that medicine has to offer runs strongly counter to fat activists' misleading claim that weight is fate.

In an interview, Ornish acknowledges that a small percentage of people may be consigned by their genes to a life of obesity, but, he insists, for most people, weight is hardly set in stone. Echoing the findings of many other scientists, Ornish says that to become obese, most people have to eat lots of saturated fat and lead sedentary lives for their fat cells to grow a fat person. In short, Ornish says, most people eat their way up and down the scale.

Wann and Solovay are quick to praise eating nutritious foods and engaging in regular aerobic exercise. They say, however, that the medical establishment in general -- and Ornish in particular -- is wrong when it minimizes the genetic element, and that it is "highly fat-phobic." To counter the "lies" of the medical establishment, local fat activists often suggest reading Losing It: False Hopes and Fat Profits in the Diet Industry, by San Francisco-based journalist Laura Fraser, who testified in support of the city's weight and height ordinance. In a recent interview, however, Fraser essentially agreed with Ornish's views on weight control. She said, "There is a genetic predisposition to obesity which is unleashed in a high-fat, low-exercise environment." In her muckraking book, she wrote: "As a group, we can't blame our collective weight gain over the past decade on a changing gene pool. We're not breeding that fast."