“Fat is a feminist issue”… or is it?

WynLewis

The proposition (in the eponymously titled book) that “fat is a feminist issue” apparently caused much debate, initially in the late 1970s and early 1980s, when its author, Susie Orbach, suggested (among other things) that women were fat (and what follows is a simplistic paraphrasing of her work) because of an unconscious desire to be fat in order to protect themselves against the oppression of being expected to be as thin as the supermodels of the day and to conform with various other gender-based contemporary expectations.

Oppression and discrimination are close bedfellows, but it took until 1993 (or thereabouts) before discrimination on the basis of someone’s weight was made unlawful in California (which is a frequent harbinger of principles that subsequently get rolled out in other jurisdictions).

But weightism (or weight bias, weight stigma, weight-based discrimination as it’s currently called) still isn’t a protected characteristic under the Equality Act 2010. Not yet. The rationale for this includes the assumption (and there are many shades of grey here) that you can stop eating (the wrong things) if you want to. So – drawing a parallel with alcoholism / smoking / having tattoos, each of which is specifically excluded from being an impairment under the Equality Act 2010 – being fat, some would say, is self induced or self perpetuated and so should also not be regarded as a disability.

It’s interesting to speculate on why being overweight is now creeping onto the radar of UK discrimination law. There could be many reasons for this (although none of them relate to aesthetics or beauty). They include the increasing cost of obesity-related healthcare issues; the difficulty in obtaining insurance; the obvious and public increase in obesity; or (somewhat, but not entirely tongue in cheek) the business costs of re-categorising and upsizing international clothing sizes from “small / medium / large” to something like “large / extra large / normal” respectively.

Or could it be something to do with the fact that men (who make up the majority of the judiciary and the legislature) are now also expected – given the front page of every issue of Men’s Health – to keep looking good and be fit, thus causing fat be become a man-ist (not just a feminist) issue?

Whatever are the reasons, they raise public policy issues that result in the root cause being picked up by discrimination law. As part of this trend, two cases have addressed the issue recently.

Last year, in the case of Walker v. Sita Information Networking Computing (employee was disabled because of a number of mental and physical impairments that were caused by obesity – rather than simply being obese), one of the EAT judges said that “… though I do not accept that obesity renders a person disabled of itself, it may make it more likely that someone is disabled”. This is quite a step forward from the proposition that someone has made themselves fat and so should not be protected.

Last month, in the Danish case of Kaltoft v. Billund Kommune (employee in charge of children was dismissed for being so fat that he couldn’t tie a child’s shoelaces), the Advocate General of the ECJ issued an Opinion (much like a “hint” to the judges) saying that disability covers the situation when a physical or mental condition makes “carrying out of that job or participation in professional life objectively more difficult and demanding. Typical examples of this are handicaps severely affecting mobility or significantly impairing the senses such as eye-sight or hearing” … and that “…cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers … plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability”. So, another step change.

But don’t jump to conclusions. The important messages to note from these developments (for the time being, at least) are:

(1) that obesity may (not will) result in statutory protection because of a disability. The newspapers’ notion that “obesity is the new disability” is wrong; and

(2) that the Government’s attempts to make its electorate more healthy (by being thinner) could be undermined by the cushion of the Government also providing statutory protection from being treated less favourably through being overweight, so why bother to change your eating habits? If so, then the unconscious desire to be fat (to avoid oppression) identified in “Fat Is A Feminist Issue” could become a conscious carelessness about being fat (to gain protection).

Perhaps the next book on this subject will be called “Fat Is A Judicial Issue”. Will it sell like hot (calorific) cakes?