As a Matter of Fat

In the neon flatlands of San Lorenzo, near a fast-food restaurant strip and a Jenny Craig weight-loss center, is Arroyo High School. It is a pure California school architectonic: a maze of open-air hallways leading to a paved yard ringed with classroom trailers and an occasional blade of grass. On this mild December day, a fat San Franciscan, Marilyn Wann, is visiting Arroyo High to talk with teenagers about the evils of weight discrimination. She was invited here by her friend and fellow fat activist, Timnah Steinman, a rosy-cheeked teacher of public speech.

Colorful posters decorate Steinman's classroom, which is fast filling up with chattering 15- and 16-year-olds. "Why Be Normal?" muses one poster. "Question Authority!" orders another. The faces of the 30 or so students in attendance light up when Steinman tells them that their guest has appeared on The Tonight Show and been featured in People magazine. Wann, the 270-pound author of Fat!So?, a popular book that promotes fat pride, begins her presentation with a quote from comedian George Carlin: "Euphemisms are a form of lying." She then proceeds to tell the direct truth: "Fat people are not gravitationally disadvantaged. They're fat. I prefer seeing things the way they are, not the way some people wish they were."

Wann, who holds a master's degree in literature and philosophy from Stanford University, tells the students she started reaching out to high schools after she read about a fat boy who committed suicide because he could not take the social harassment visited upon him because of his weight. That heartfelt anecdote quickly quiets down the class; they are all ears.

"I came out as a fat person," confides Wann, "on what I call my bad fat day, October 26, 1993. That's the terrible day that my boyfriend said he was ashamed to be seen with me. Then Blue Cross canceled my health insurance because I am what they call "morbidly obese.'

"So I decided to reclaim the f-word," she smiles. Then Wann joyously leads the kids in shouting the f-word: "Fat. Fat. Fat." The ice is definitely broken; the kids are on her side.

During the next hour, Wann teaches the class to deconstruct stereotypes about fat people (bad); thin people (good); sexual standards (fat folks are not attractive); food (fat people are gluttons); and health (fat people are unhealthy). In the back of the room, a fat boy starts to relax. His face moves from scared to pensive. And he grins when Wann breaks the kids into small groups, where they discuss ways to combat specific instances of fat discrimination, such as when a gym teacher teases you about your weight.

For the past seven years, Wann has been speaking, lobbying, and writing, hoping to revolutionize the way America treats fat people. To this end, she stresses that weight is not determined by a person's eating habits, but by heredity. On this day, she tells the students of Arroyo High that genetics determines 80 percent of a person's weight, that fatness is natural, and that it is essentially impossible for a fat person to lose weight over the long run.

These statements aren't entirely true. Outside the classroom, she admits that the scientific verdict on genetic influence is not in, that a person's genes are thought to be responsible for "somewhere between 30 to 80 percent" of body weight. In other words, she acknowledges, fatness may not be forever. But that's not what these students -- or, for that matter, the San Francisco Board of Supervisors -- have heard from the lips of Marilyn Wann.

Wann is a charming, articulate, robust, 34-year-old rebel with a cause. To put it simply, she is a professional fat agitator. In February 1999, she organized a protest in San Francisco against a health club chain after it put up a billboard featuring a hungry space alien and the caption, "When they come, they will eat the fat ones first." Thirty large people did aerobics in front of the gym, brandishing signs saying "Eat Me." Wann, who was once a freelance journalist, says she deliberately chose a slow news day for the demonstration; her amusing spectacle got international coverage, and the ad was pulled.

Fourteen months later, largely due to Wann's efforts, the San Francisco Board of Supervisors added weight and height to existing city ordinances that now make it unlawful to discriminate "based on actual or perceived race, religion, color, ancestry, age, sex, sexual orientation, gender identity, disability, place of birth, weight, height, domestic partner status, marital status, AIDS/HIV status, association with members of [these protected] classes." These laws target acts of discrimination in employment, housing, public accommodations, business, and social activities, because "such discrimination poses a substantial threat to the health, safety, and general welfare of this community."

A representative of the Little People of America (i.e., dwarves) spoke in favor of the new law, which disallows discrimination based on both height and weight, but the main force behind the legislation was people concerned about fat discrimination. In public testimony leading up to the vote, nearly two dozen people, mostly large women, told personal stories about fat discrimination they had experienced.

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.

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.

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."

Ornish puts it more directly. "Weighing 300 pounds is not OK," he says. "Saying that obesity is 80 percent genetic absolves [fat people] of responsibility to do anything about it. It would be better if they said, "I am predisposed to obesity, so I will work to improve my health,' thereby losing weight."

In Tipping the Scales of Justice, Solovay writes: "The prejudice against fat is similar, sometimes more severe than race-based bias." She claims that fat people are "an oppressed biological minority," and links the medical establishment's so-called "war on fat" to "genocide." Bemoaning the fact that most courts treat fat as a mutable condition, she declares, "Discrimination against fat people is the civil rights hurdle of the new millennium."

Solovay and Wann insist that discrimination against fat people is pervasive. And there is some empirical evidence showing that, at the very least, college students and sales managers are prejudiced against fat people. Last year, Personnel Psychology published an analysis of 29 studies of anti-fat prejudice. The report, "Weight-Based Discrimination in Employment: Psychological and Legal Aspects," was written by Mark V. Roehling, a business professor at Western Michigan University. On the whole, the studies were more a measure of people's bad attitudes than a measure of provable acts of discrimination. Roehling determined that there is workplace discrimination against fat people, but he attributed an important feature of the bias against overweight employees to society's general bias against "unattractive" people. Roehling noted that our culture tends to view "attractive people as more intelligent, sociable, dominant, mentally healthy, and socially skilled than unattractive people."

While it may be self-evident that some fat people are subject to some degree of social scorn and unfair treatment, advocates of the new size discrimination ordinance provided no statistics to show that "discrimination based on body size is a serious social problem in San Francisco," as the ordinance asserts. In fact, fat activists admit that there is a lack of solid evidence that weight discrimination is a pressing social problem. "Although anecdotal evidence abounds, definitive numbers measuring employment discrimination against fat people are difficult to ascertain," Solovay writes.

It is all but impossible to contend, with a straight legal face, that the mistreatment of fat people approximates, in any way, the systematic historical oppression blacks and women have suffered in America. Even so, the bad personal experiences of a handful of fat activists have been used to inspire the creation of a far-reaching law that will likely collapse if it is tested in court.

The Keefer complaint against the San Francisco Ballet may not long survive its minutes of fame. The ballet school's lawyers are trying to cast the matter as an employment dispute, an argument that, if accepted, could lead to dismissal of the complaint on the grounds that body type is a "bona fide occupational qualification" for a ballerina. The lawyers are also arguing that the school is a private club, like the Boy Scouts of America, rather than a public accommodation, and so may constitutionally choose who may join, even if that choice excludes homosexuals.

Larry Brinkin helped Keefer write the complaint, and is also the Human Rights Commission official charged with investigating the complaint. If he finds evidence of discrimination, he will recommend sanctions against the school, which could range from taking away its $500,000 per year in city arts funding to incarcerating the school's chief executive.

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."

In trying to combat weight discrimination, the city of San Francisco actually provided legal protection to the pursuit of what most medical authorities consider to be unhealthy lifestyle choices. If obesity itself is not a chronic disease, it seems to be linked to major deadly diseases. A 1998 editorial in the New England Journal of Medicine notes, "Being substantially overweight is correlated with serious health problems, including coronary disease, hypertension, diabetes, and a variety of musculoskeletal problems. ... Some who object to society's prejudice against obesity engage in overly rigid biological determinism. They assert that obesity is no more within a person's control than eye color and has nothing to do with habits ... [they still] see people in medical terms, rather than as ordinary people who happen to be heavier than average, probably from some mixture of nature, nurture, and choice."

Wann is familiar with this editorial. A "fact sheet" that she distributes features a quote from it: "[D]ata linking overweight and death, as well as the data showing the beneficial effects of weight loss, are limited, fragmentary, and often ambiguous." Wann promotes this seemingly authoritative statement to suggest that there is no correlation between obesity, chronic disease, and mortality. She generally neglects to point out what follows that sentence: "Nevertheless, the totality of evidence suggests that as weight increases, so does mortality, but only modestly."

Because the causes of obesity differ from individual to individual, it is hard to set precise standards for measuring it. Many people who are technically obese -- according to a formula known as the "body mass index" -- are perfectly healthy when they eat good food and exercise. When people weigh more than 30 percent above the established norm, however, they start to run major health risks, not so much because they are fat, but because they eat poorly and do not exercise. Morbid obesity, calculated at 100 percent over the norm, is considered to actually cause diseases, such as diabetes; less than 1 percent of obese people are morbidly "super-size."

A recently released report to President Clinton says there is an "unprecedented epidemic of childhood obesity," and millions of adolescents are at risk of heart disease and diabetes. The government estimates that about one-third of the adult population is obese, up from 25 percent a decade ago. The report blames physical inactivity (including television watching) and poor diet for 300,000 deaths per year.

"If weight was all caused by genetics," Ornish asks, "then why do we have a greater percentage of obese people than ever before in the population?"

The most recent advances in medical research emphasize the predominance of environmental and lifestyle factors in the formation of both excessively fat and thin people. There is, however, an important physiological component linked to body weight; it is what Joanne Ikeda, co-director of the Center for Weight and Health at the University of California at Berkeley, describes as a metabolic defect linked to obesity that makes weight loss extremely difficult.

Ikeda is referring to the existence of metabolic "set points." Under the theory, which has gained broad acceptance, the human body regulates its weight through eating habits and physical activity. When a person diets, for instance, a sudden loss of weight can trigger the body, in a sort of "famine response," to grow extra fat cells, which creates a set point above the dieter's previous weight. The minute that the diet is broken, the extra fat cells expand, and the eater balloons.

Exercise has been shown to lower the set point, hence lowering weight. Eating saturated fat has been shown to raise the set point and weight.

Obese people often suffer from set point imbalance. The good news is that people can gradually regulate their weight by manipulating the set point with a nutritious diet and regular exercise.

The bad news, at least for those who support a weight discrimination ordinance, is that the vast majority of the medical establishment does not consider obesity to be immutable. And to the extent that obesity is now seen, in a scientific sense, to be changeable, the arguments for protecting obesity with a strongly enforceable discrimination law are seriously undermined, and the argument that San Francisco's law is an endorsement of unhealthiness seems ever more persuasive.

Krissy Keefer's latest modern dance composition, Cavewoman, is impressive. In a performance at the Dance Mission studio, her troupe of beautiful, athletic, short, tall, plump, and rawly feminist women danced a thumping ballet of ritual sex, murder, and rebirth, to the cadence of taiko drums that they beat with fury and joy.

So why is Keefer battling to send her daughter into the jaws of what would seem to be the enemy of her aesthetic, the taskmeisters of classical ballet?

She says she wants her daughter to go to the San Francisco Ballet because its school has the best facilities in town. But Fredrika, who danced on the same bill as Cavewoman, seemed able to perform with great gusto and freedom in her mother's wonderful dance space, which spreads over several thousand square feet. The only apparent problems with Dance Mission seem to be easily fixable, if enough money is available. All the studio needs is a few broader chairs, a wider bathroom, taller doors, a shorter refreshment counter, and some disability handrails that heavy people could use while climbing the building's long flight of steep stairs.

Oh. An elevator might be nice, too.