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As a Matter of Fat

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Should Brinkin find in favor of Keefer, it is likely that the school will go to court. And the size law appears to be quite vulnerable to challenge on any number of grounds. The law could be overturned because the weight category is mutable and inherently vague. Then again, there is no empirical evidence that size discrimination has been a significant historical problem in San Francisco. Even the height category is mutable if one is, like Fredrika Keefer, 8 years old.

It is also quite possible that state law may be found to trump the city's size discrimination ordinance.

Mike Sweeney, chief counsel for the California Department of Fair Employment and Housing, says discrimination in public accommodation -- the basis of the Keefer complaint -- is covered by the state's Unruh Civil Rights Act. He indicates that a lawsuit brought under San Francisco's height and weight ordinance could be thrown out of court because California Supreme Court rulings during the past decade have clearly shown that local discrimination ordinances are pre-empted by state law. The state Legislature, he notes, has shown an intent to "occupy the field" in all matters of discrimination.

Publicly, the City Attorney's Office disputes this analysis of the city's new height and weight law. But a letter the office sent to city supervisors in May 2000 (and now refuses to release, arguing that it is protected by attorney-client privilege) apparently put forward just such an analysis. The San Francisco Chronicle, which obtained a copy of the letter, reported that it said: "The state Fair Employment and Housing Act appears to pre-empt the city's ability to add categories of discrimination it wants to ban. The opinion said that local judges "will probably dismiss civil actions brought to redress acts of alleged discrimination.'"

Brinkin says that he will soon make public the work of a small committee that is drawing up guidelines intended to eliminate size discrimination in San Francisco. The committee consists of Brinkin, Deputy City Attorney Cathy Barnes, and Solovay, the law school graduate, author, and fat activist. Dwarves are not helping to write the guidelines. Tall and thin people are not represented on the committee, either, even though the height and weight provisions would seem to apply to them as well.

Among other things, Brinkin says, the committee is looking into requiring movie theaters and restaurants to provide a reasonable number of armless seats for the fat. "The Human Rights Commission will decide what is reasonable," he remarks. "We want to make all businesses and organizations more accommodable to the full range of human size."

It is unclear exactly how far such accommodation must go, under San Francisco's size ordinance, to be reasonable. In her book, Solovay lays out what should be done to make public accommodations more fat-navigable. She would change "physical obstacles including but not limited to: seating in public and private means of transportation like buses, subways, and airplanes; certain public restrooms; any establishment with limited seating options like classrooms, stadiums, and theaters; public walkways that lack handrails or accessible periodic rest areas; and public places that are unusually narrow like some hallways and checkout aisles in stores."

Stephen Cornell, vice president of the Polk Street Merchants Association, says the new laws could be an expensive headache for small businesses, especially ones that must compete with stores in shopping centers outside the city limits, and beyond reach of the fat discrimination law. "Merchants want to accommodate customers," he remarks. "But how is a 10-by-10-foot storefront in Chinatown going to be able to afford a retrofit? And what about the SRO hotels with narrow hallways and small rooms?"

A spokesperson for Southwest Airlines says the carrier will continue to charge extra if a person takes up more than one seat.

If the city's Compliance Guidelines to Prohibit Gender Identity Discrimination, authorized in 1998, are any indication of what to expect, fat jokes will be illegal by the city's size guidelines. So will thin jokes. All employers will be asked to provide employees with continuing education in height and weight discrimination. "Size harassment" will be a misdemeanor, punishable by a $500 fine and six months' imprisonment in county jail.

Educating children, teenagers, and adults about unfair discrimination is an important social undertaking. But the new law appears to be a case of using a bomb, when a can of Raid would do. And whether the city's size discrimination guidelines turn out to be draconian or less so, there is a real question about whether they are needed.

A spokesperson for the main dwarf support group in San Francisco says the little people have no problem with employment, and they are treated well in the city's restaurants. Even Wann acknowledges that restaurants are generally fat-positive and that, in fact, the city has "plenty of very cool clothing boutiques" for the fat. Major department stores set up whole floors of clothes for large folks years ago.

Talking with Wann and Solovay, though, it is impossible not to feel the rage that drove them to demand legal protection for being fat.

"I cannot get close to people who are having weight-loss surgery," says Wann. "It's too painful to me. I do not have what they need. They want a happy life, and I can't give that to them unless they are willing to be rebellious. If you go for conformity and the approval of mainstream, unthinking people, I can't help you. But I can tutor you in how to have a great fat life and have all the sex and clothes and respect that you want to have -- but you have to be a rebel."

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