* Draft: Please do not cite or circulate without author permission * The Right to be Fat Yofi Tirosh1 ―Why say 'Inside every fat person there is a thin person waiting to come out.' For me, it's more like 'Outside every fat person there is an even fatter person waiting come out.'‖2 1 I am grateful to Susanne Baer, Hanoch Dagan, Ronit Donyetz Kedar, Yair Eldan, Talia Fisher, Zohar Kohavi, Kevin Kolben, Menny Mautner, Sagit Mor, Tali Scheafer, Hila Shamir and Kenji Yoshino for illuminating conversations and helpful comments on earlier drafts. I am also thankful to the panel attendances at the 2009 annual meeting of the Israeli Law and Society Association at Tel Aviv University Faculty of Law, and to participants at the Bar Ilan University Body and Gender Lecture Series (November 2010). Hagai Kalai, Roni Liberzon and Gal Sagi provided outstanding research assistance. 2 Thanks to Professor Kenji Yoshino for sharing this quote (from his friend). Tirosh, RTBF, page 1 I. Introduction....................................................................................................................................... 2 I.A. Fat Manifestations in Law ........................................................................................................ 4 I.B. Two Preliminary Assumptions ........................................................................................................ 8 I.B.1 Mutability of Bodily Weight .......................................................................................................... 8 I.B.2 Weight and Health ...................................................................................................................... 10 II. The Argument from Liberty ........................................................................................................... 13 II.A: A Very Sketchy Overview of Mind-Body Dualism ...................................................................... 13 II.A.1 Contemporary Critique of Mind-Body Dualism ........................................................................ 15 II.A.2 The Body Turn in Law .............................................................................................................. 17 II.A.3 Habeas Corpus Redux: Returning to the Basis of Fundamental Rights ..................................... 17 II.B. Phenomenological Accounts of Fatness ...................................................................................... 19 II.B.1 The Before and After Rituals: Fatness as a Future-Grounded Identity ....................................... 22 II.B.2 Alternatives to the Future Grounded Identity ............................................................................ 23 III.C. The Right to be Fat.................................................................................................................... 23 III.C. Normative Implications: Some Hard Questions ......................................................................... 26 III.C.1 Airplane Tickets and Health Insurance Premium ..................................................................... 26 III.C.2 Employment Discrimination .................................................................................................... 29 III.C.3 Smoking, Skydiving, and Other Dangerous and Idiosyncratic Behaviors .................................. 31 III.C.4. A Note about Anorexia Nervosa............................................................................................. 31 Part III: Welfarist Arguments .............................................................................................................. 33 II.A. Thin People Have Stakes in the Right to be Fat As Well.............................................................. 33 IV. Conclusion..................................................................................................................................... 36 I. Introduction The debate on whether weight should be a protected category of anti-discrimination law is vibrant and seems to be peeking. Scholarly legal treatments of the question have thus far approached it from two main angles: critically examining the rooted cultural and medical belief that weight is a mutable characteristic, and questioning the assumed link between weight and bad health.3 While these directions of inquiry are important in exacting the debate, this article approaches the issue of bodily weight in law from a different angle. Rather than relying on empirical data about the causes and effects of fat, in this article I wish to approach the question of individual weight from a rights perspective, and ask whether weight can and should be understood as a matter of liberty, along with other deontologically based human ―doings and beings.‖ My inquiry will lead to the conclusion that we should answer this question with an unequivocal ―Yes.‖ As a way to suspend the effects of the empirical data, and its serving of utilitarian and instrumental argument, and address the question of liberty as ―purely‖ as possible, I will assume (despite growing evidence to the contrary) that weight is indeed a characteristic that is within the control of the individual, a matter of discipline, decision, chosen life style and willpower.4 I will further assume (again, for the sake of sharpening the argument and despite myriad evidence to the contrary) that ―overweight‖5 or obesity are certainly damaging for one's 3 Tali Schaefer, Too Fat to Mother, http://www.firsttheegg.com/too-fat-to-mother/; (complete, for yofi yyy). 4 See Id. 4 See Id. 5 I prefer throughout this article terms such as ―fat‖ and ―very fat‖ over ―obese,‖ ―morbidly obese,‖ or ―overweight.‖ health. Mutability and health notwithstanding, I will argue that freedom to occupy a body of any size should be re-conceptualized as a domain of personhood; i.e., a domain in which, in a jurisprudence based on basic liberties according to the classic liberal tradition, government and fellow citizens should not intervene. I turn to three lines of argument to develop this claim. First, I argue that contemporary rights discourse reflects neglect and obliviousness towards fatness as a domain of liberty, and this omission is grounded in the fact that modern law has been rooted in Cartesian-style mind-body dualism. Not only are mind and body two separate and separable domains in this tradition, but mind has been privileged over body, and body has been considered an inferior, unimportant, and even undignified subject of ethical and legal attention. I apply to the field of legal theory and practice the recent deconstruction of the mind-body dualism offered by scholarship in the social sciences and the humanities. I maintain that basic freedoms cannot be understood as pertaining only to mental and abstract faculties (such as thought, religion, or speech) but must today be recognized as including bodily experience. Second, I posit an argument from individuality, by which asserting one's bodily existence is a matter of essential, basic development of self; a territory in which society or state should not intervene. Third, I analyze fatness as an identity that is currently understood through its negation: fatness‘s central locus is in an imagined future of transformation into thinness. I offer a critique of this temporal trajectory of fatness, through positive, phenomenological accounts of the lived-in fat body as experienced by fat individuals. Finally, the article briefly outlines a supplementary line of argument to the deontological one on which it centers, which is more welfarist. It maps some instrumentalist reasons for why it would be ineffective for public policy to focus on weight reduction. I conclude by discussing some of the current legal questions that would be influenced by my thesis, and by offering ways to weigh the costs versus the benefits of weight-related policies and laws. The remainder of this introduction will: 1) Map the main questions in which law is involved in regulating fatness. 2) Explain the premise of my argument. When I use ―overweight,‖ I mostly put it in quotes, to indicate that the surplus in one‘s weight is an unstable judgment, often based on shaky science and on contingent cultural norms. I sometimes use other terms prevalent in current usage, such as ―big", ―corpulent,‖ or ―sized.‖ The terms I reject rest on the medical understanding of fatness, an understanding that from reasons I will explain, I believe we should treat with critical awareness. Indeed, ―fat‖ is currently a derogative term in our culture, and I imagine that to many readers using this word in a law review article sounds inappropriately blunt, rude, and not clinical enough. As prominent fat advocate Marylin Wann put it, fat is the new F word (WANN, supra note 42, at xii). However, one of the main goals of this article is to serve as a rejoinder to those working to reclaim the word ―fat,‖ by opening the possibility to think about bodily weight through alternative frameworks (most notably phenomenology, and the basic liberties discourse that emanates from the phenomenological account and supplements it with normative imperatives). ―Fat‖ is the term used by identity politics groups who seek to empower and reaffirm big bodied people (see, e.g. NAAFA - National Association to Advance Fat Acceptance, http://www.naafaonline.com/dev2/index2.html. For a history of NAAFA and similar movements, see Jeffery Sobal, The Size Acceptance Movement and the Social Construction of Body Weight, in WEIGHTY ISSUES: FATNESS AND THINNESS AS SOCIAL PROBLEMS 231 (Jeffery Sobal & Donna Maurer eds., 1999)). Advocates of fat pride seek to reclaim this word and imbue it with positive meaning. The growing academic field of fat studies (see, e.g., SONDRA SOLOVAY & MARILYN WANN, THE FAT STUDIES READER (2009); See also Fat!So?, http://www.fatso.com/) chose to use ―fat‖ and not ―obese,‖ ―big,‖ or ―heavy‖ as its main signifier, in order to convey its critical standpoint regarding the pejoratization of this term: ―In fat studies, there is respect for the political project of reclaiming the word fat, both as the preferred neutral adjective (i.e., short/tall, young/old, fat/thin) and also as a preferred term of political identity. There is nothing negative or rude in the word fat unless someone makes an effort to put it there; using the word fat as a descriptor (not a discriminator) can help dispel prejudice. Seemingly well-meaning euphemisms like ‗heavy,‘ ‗plump,‘ ‗husky,‘ and so forth put a falsely positive spin on a negative view of fatness…. Calling fat people ‗obese‘ medicalizes human diversity.‖ (WANN, supra note 42, at xii, xiii). I.A. Fat Manifestations in Law The increased public awareness to the ―obesity epidemic‖ has become ubiquitous. One cannot read the newspaper, listen to the radio or watch television without encountering treatment of this issue on a daily basis. The public is constantly forewarned by medical and nutritional experts, and by economists and educators, that we are becoming heavier, that overweight kills and that therefore something must urgently be done.6 The anti-fat craze does not remain, of course, at the policy level, but infiltrates both to culture and to law. Culturally, fat people are marked as deviant and experience prejudice and harassment that are well internalized and shape their self esteem to a degree that often reaches the core of their identity. 7 They are denied equal opportunity in employment,8 they are represented in the media as laughable and miserable figures (in documentaries, in reality shows, in talk shows, as well as in sitcoms and drama),9 and their ability to sustain a sense of self-worth and entitlement to participate in the full scope of civic and personal life has been considerably jeopardized. One possible classification of the way the law is positioned in relation to fatness would be through the distinction of positive and negative, or ―by active legal intervention‖ and ―by legal omission.‖ In the positive and active category I include norms that partake in the ―war against obesity‖ by facilitating various regimes meant to regulate weight and by creating legal instruments that provide means for fight the ―obesity epidemic.‖ In the negative and omitting category the law is silent about weight even when it has become a meaningful category that might merit normative recognition. Usually in the first category, the legal intervention arrives as a response to developments in other professional, institutional, or academic fields that name a problem related to fatness. For example, the medical profession points out a fat-related risk, and this risk is then echoed by public health officials, educators, or insurance companies. After these sectors developed schemes of action to respond to the problem the named, we might find legal regulation as well. 6 A recent prominent example, one of many, of course, is First Lady Michelle Obama‘s initiatives to ―fight‖ childhood obesity, which include starting a vegetable garden at the White House, setting up exercise programs for children, and lecturing restaurants on how to reduce fat content in their servings. Notwithstanding, Mrs. Obama herself admitted that she never talks about her daughters' weight in front of them, for fear of causing problems with their diet (See Now First Lady lectures restaurants on food choice as she steps up campaign against childhood obesity, MAILONLINE, Sep 15, 2010, http://www.dailymail.co.uk/news/worldnews/article-1311902/Michelle-Obama-lectures-US-restaurants-steps-childhood- obesity-campaign.html. 7 This is especially so in the case of women and girls. See, e.g., JOAN JACOBS BRUMBERG, THE BODY PROJECT: AN INTIMATE HISTORY OF AMERICAN GIRLS (1998) (arguing that for American girls, shaping the body is a central site for shaping one‘s selfhood). 8 See, e.g., Esther D. Rothblum et al., The relationship between obesity, employment discrimination, and employment-related victimization, 37 J. VOCATIONAL BEHAVIOR 251 (1990) (Noting that very obese subjects reported more types of employment discrimination than did non-obese subjects); Rebecca Puhl & Kelly D. Brownell, Bias, Discrimination, and Obesity, 9 Obesity Research 788, 789-90 (2001) (suggesting that overweight people may be at a substantial disadvantage even before the interview process begins, and are assumed to lack self-discipline, be lazy, sloppy, and so on. Moreover, obese tend to earn lower wages for the same job performed by non-obese counterparts and are denied of promotions). 9 See, e.g., Susan M. Himes & J. Kevin Thompson, Fat Stigmatization in Television Shows and Movies: A Content Analysis, 15 OBESITY 712 (2007) (noting that fat stigmatization is often presented in the form of commentary and humor through entertainment media, like "fat jokes" on Jay Leno's late night show, or comments that are meant to make a statement about the weight of the overweight character, like in the comic movie The Nutty Professor). Examples of active legal intervention include: 1) Laws mandating that school-pupils are weighed on a regular basis by the school nurse, and that a report-card is sent to their parents, along with dietary and exercise recommendation.10 2) Creating (via case law) parental neglect standards that are related to children‘s weight: Courts mandate removing extremely fat children from the custody of their parents by welfare authorities. The child‘s weight is considered a primary indication of parental neglect and abuse, often overriding contrary evidence of improvement in a child‘s health and lifestyle, such as lower blood sugar and blood pressure.11 3) Initiatives that are either aimed at a specific population or at the entire citizenry, to make it costly to buy junk food or maintain other practices that are assumed to be in correlation with fatness. For example, food labeling regulations requiring that fast food restaurants specify the nutritional value of their products;12 school cafeterias are required not to sell sweetened soft drinks.13 New York City‘s Mayor Michael Blumberg, for example, has been promoting a ban on using food stamps to buy sugared soft drinks.14 Another initiative advocated by NYC leadership had been to increase tax on soft drinks.15 First Lady Michelle Obama has been promoting a Senate bill to set more restrictions on what school cafeterias can serve, and to offer them additional fundings for serving healthier food.16 10 Gal: there is a law like that in Delaware - find the citation, or an article that cites it, even a newspaper article… You can try looking in a website called -שפת האכילהI am sure there is reference to it there – can't find a reference… xxx. In Japan, an initiative with similar logic and technique but even more ambitious scope has been introduced in 2008, by a law that mandates that workplaces and local authorities measure the waistline of all 40-74 year olds. Those not measuring up will be asked to lose weight, will receive guidelines, and might be subjected to re-education if after 6 months they fail to do so. Companies and local municipalities that will not reach the goals of reducing overweight in their population will be subject to monetary penalties (See Norimitsu Onishi, Japan, Seeking Trim Waists, Measures Millions, N.Y. TIMES, June 13, 2008, http://www.nytimes.com/2008/06/13/world/asia/13fat.html?_r=1. 11 See Tali Schaefer, ―Over Their fat Bodies: Regulating Parents through Their Children's Health‖ (on file with author) (discussing cases in which children are taken away from their parents‘ custody—typically their mothers custody—due to the child‘s extreme fatness, and showing that weight has been reified as the end-in-itself rather than as an indication of a healthy or productive lifestyle. When a child‘s blood fat and respiration has improved since the last court hearing and they exercise regularly and eat better, for example, they are still taken away if in the court‘s judgment they didn‘t lose enough weight). 12 See Sewell Chan, Court Upholds the City’s Rule Requiring Some Restaurants to Post Calorie Counts, N.Y. Times, Feb. 17, 2009, http://www.nytimes.com/2009/02/18/nyregion/18calorie.html?_r=2&ref=nyregion (Regarding the rejected appeal by the New York State Restaurant Association against the 2007 New York City initiative requiring most major fast-food and chain restaurants to prominently display calorie information on their menus). 13 In California, for example, elementary schools cafeterias are allowed to sell only water, milk, and juice that is at least 50% fruit juice with no added sweeteners; and in New York they are not allowed to sell sweetened soda water or candy during school day (See United States Department of Agriculture - Food and Nutrition Service, http://www.fns.usda.gov/cnd/lunch/_private/CompetitiveFoods/state_policies_2002.htm). 14 See Anemona Hartocollis, New York Asks to Bar Use of Food Stamps to Buy Sodas, N.Y. TIMES, Oct. 6, 2010, http://www.nytimes.com/2010/10/07/nyregion/07stamps.html?_r=4.One reader response to this article reads: ―There is something very warped about the richest person in NYC trying to prevent the poorest from drinking soda pop. The one who could, if he so desired, drink the most expensive champagne instead of water, fixated on making sure the little people can't get their hands on an Orange Crush.‖ (response no. 44, Id.). A similar 2004 scheme by Minnesota was rejected by the federal Agriculture Department (who has to authorize such limitations on food stamps), with the reasoning that such a scheme ―was based on questionable merits and would ‗perpetuate the myth‘ that food-stamp users made poor shopping decisions.‖ (See id). 15 See id. 16 See Philip Brasher, Anti-obesity effort stalls in Congress, DESMOINES REGISTER, Sep. 30, 2010, http://blogs.desmoinesregister.com/dmr/index.php/2010/09/30/anti-obesity-effort-stalls-in-congress/ (regarding Mrs. In the second category, of law‘s omissions, we find instances in which the status of a fat person (legal status, material burden, access to equal opportunities, etc.) is strongly (and adversely) determined by his or her weight, but is silent about such weight-based distinctions. Some illustrations: 1) Bodily weight is absent from the list of suspect categories in employment discrimination laws, although there is well based empirical data on the nexus between fatness and employment discrimination.17 There are few exceptions from the last decade in U.S. law, of employment discrimination rules that enumerate weight or something related to weight as forbidden grounds for classification (in Michigan, for example, the civil rights act forbids discrimination based on weight, and in Washington D.C. the act forbids discrimination based on physical appearance).18 Interestingly, these advanced laws have produced very little litigation, for reasons I will discuss below.19 But in most jurisdictions in the USA and Europe, the law does not forbid rejecting a job candidate because of his weight (except if the candidate has a disability discrimination claim, but this would not be a claim of weight-based discrimination per se).20 Whether such a ban on weight-based employment discrimination is at all justifiable is a question I will discuss closer to the conclusion of this article. For this early stage of the exploration, I simply seek to note that weight is significant in access to jobs, promotions, salaries and other employment-related resources, and that the law does not recognize this fact as significant. 2) Current law also does not forbid double-charging fat air travelers, or setting a higher health insurance premium to heavier individuals, which could be considered price discrimination, if we conclude that this is an unjust pricing practices (again, I will assess this normative question later in this article).21 3) Other forms of price and service differentiation that might amount to discrimination. Examples from anecdotes that made it to the mass media include charging more for a manicure from a fat woman, explaining that she might cause damage to the salon chair,22 or burial services charging a bereaved family extra because they Obama's failure to pass a Senate bill that would restrict what schools can sell in cafeterias and vending machines, while funding more nutritious foods). 17 Avi Dor et al., A Heavy Burden: The Individual Costs of Being Overweight and Obese in the United States 9 (2010), https://docs.google.com/viewer?url=http://www.gwumc.edu/sphhs/departments/healthpolicy/pdf/HeavyBurdenReport. pdf (noting that female employees who are obese earn $1,855 less annually compared to female employees who are not obese (6% lower than the median women annual wage). add more citations yyy Yofi. 18 The state of Michigan prohibits employers from discriminating on the basis of "religion, race, color, national origin, age sex, height, weight, or marital status" (Mich. Comp. Laws Ann. § 37.2202(1)(a)); Washington DC prohibits any kind of discrimination based on "race, color, religion, national origin, sex, age, marital status, personal appearance… of any individual" (D.C. Code Ann. § 2-1401.01). 19 See infra part nnn 20 For disability claims related to weight see, e.g.- yofi yyy - list a few cases on this. 21 See Scott Mayerowitz, How Fat is Too Fat to Fly?, ABCNEWS, Dec. 2, 2009, http://abcnews.go.com/Travel/BusinessTraveler/obese-passengers-fat-fat-fly-us-airline/story?id=9227535 (regarding the American Airlines policy for "larger passengers"); See also, Rob Goldstone, The Tricks and Trials of Traveling While Fat, N.Y. TIMES, Oct. 20, 2010, http://www.nytimes.com/2010/10/24/travel/24journeys.html?_r=1&emc=eta1 (about a "plus size" passenger's unpleasant traveling experience). find more references - yyy Yofi. 22 See Emily Friedman, Salon Charges Customer Extra Five Dollars Because She's Fat, ABCNEWS, Aug. 23, 2010 http://abcnews.go.com/US/michelle-fonville-charged-extra-georgia-salon-shes-fat/story?id=11461062 (a nail salon in Georgia charged a customer an additional five dollars because she was overweight, for fear that their expensive chairs will break under her load). claimed that the corpse was of a heavy individual, and extra effort was required in carrying it.23 Another example are fashion brands that sell their large size items only online, so as to avoid the damage to the fashionable image in the eyes of ―regular‖ size costumers (―If this size 18 woman can wear this brand, then it is not for thin girls like myself.‖)24 Being able to buy a product only via the internet is not a trivial technicality, but can be viewed as both a symbolic and a literal exclusion of fat costumers from the market arena.25 A recent study found that fat women pay consistently more for services and goods.26 4) Lack of legal response to denial of goods and entitlements such as the right to graduate from college if one successfully completed one‘s academic requirements. In late 2009 the media reported a practice by Lincoln University in Pennsylvania, which denied fat students the right to graduate unless they complete a fitness class (commonly referred to as ―the fat course‖) that meets three times a week.27 Notably, the college is historically black, and its policy was aimed at addressing the high rates of diabetes among its diabetic students, most of them African American. After the media exposure the school retreaded, noting that this policy violates its commitment to equal treatment. The class will now be only suggested to relevant students, and earlier in their college years.28 5) Less direct ways in which fatness sneaks into the litigation and legal meaning making in ways that should perhaps require a development of a doctrinal solution. For example, in a recent jury-selection case, it was debated whether weight could serve as a basis to disqualify jurors. The criminal prosecutor struck down a juror, arguing that ―in his experience, this type of person had been picked on and made fun of by others… (and) they might be sorry for the defendants because the defendants also have the characteristics of having been picked on by the police or being deprived of the advantages others have.‖29 23 A case that was recently reported in the Israeli media. Yofi, cite Yediot Aharonot yyy. 24 Yyy cite. 25 In the era of late capitalism, commerce areas such as stores and malls are the current town square. They shape people‘s understanding of their community and serve as arenas for political and cultural exchange. See Orna Kazin, yyy; Hila Keren, private law discrimination; Tsachi Keren Paz, private law and equality, yyy. Those concerned with fat people‘s lack of physical activity should note that being able to shop online rather than in the store discourages fat people to leave home and walk to or in the mall. I am grateful to my student Guy Sadaka for drawing my attention to this last point. 26 Cite study – Yofi yyy. Sometimes price or service discrimination is justified on efficiency considerations, at least short ter ones. See, e.g., Ian Iyers et al., ―To Insure Prejudice: Racial Disparities in Taxicab Tipping‖ 114 Yale L. J. 1613 (showing that taxi drivers might be justified in preferring white costumers because they leave better tips, but arguing, in a vein similar to mine, that this is a circular, somewhat tragic, effect of the market, that structural policy changes might appease). 27 Kate Harding, You must be this thin to graduate, SALON, Dec. 1, 2009, http://www.salon.com/life/obesity/index.html?story=/mwt/broadsheet/feature/2009/12/01/lincoln_university (between 2006 and 2009, Lincoln University in Pennsylvania required students with a BMI over 30 to take a remedial fitness course in order to be eligible for graduation). 28 AP, Pa. School Drops Required Fitness Class for Obese, ABCNEWS, Dec. 5, 2009, http://abcnews.go.com/US/wireStory?id=9259724 (after a media frenzy, Lincoln university dropped the required fitness class for obese students). For a critique of the college practice see Susan Albers, Weighing College Students: Helpful or Harmful?, PSYCHOLOGY TODAY, Nov. 21, 2009, http://www.psychologytoday.com/blog/comfort-cravings/200911/weighing-college-students-helpful-or-harmful (claiming the Lincoln University initiative did more harm than good, since it created weight discrimination and in fact suggested that students with BMI over 30 are unhealthy in comparison to thinner ones, an assumption that is incorrect). 29 cite case and add other jury selection cases xxx yofi. This last case clearly demonstrates how fatness is emerging as an identity with distinct personality attributes. However, as in all the examples discussed above, its attributes are uniformly negative. I would argue that we are currently in a ―Foucauldian moment‖ in relation to fat identity: Just as sexual orientation became at a certain moment in history not just a behavior, but, as Foucault shows, a personality, a status, a fact that defines and shapes a whole set of personal qualities,30 so today fatness is growing to be a status: it is a character, or more accurately, an indication of failure of character; it is an index for laziness, lack of self control, illness, contamination, and even irrationality and feebleness of mind. I do not think we can undo this development of fatness as a persona by ignoring the salience of the fat identity category, in culture and in law. I.B. Two Preliminary Assumptions In the discussion that follows I will assume, for the sake of the argument, that weight is mutable. I.e., changes in lifestyle through diets and exercise, or more radical interventions such as surgery, can lead to a long-term weight loss. I will also assume that fatness is generally not conducive to good health, in that it is either a factor in- or a cause for conditions such as diabetes, heart disease, or high blood pressure. Fat, in other words, might decrease life expectancy and life quality. Making these presuppositions renders my challenges of making a case for the right to be fat more difficult: If fatness can be changed and leads to shorter and worse life, why should we worry about protecting people‘s right to remain fat, instead of encouraging them through both sticks and carrots to lose weight and to lead a lifestyle that prevents weight gain? For if weight is immutable, or at least not as easily mutable as we think, then our intuition of justice would probably tend to support a ban on discriminating fat people in employment, and feel that airlines should accommodate them in planes like they do with people on wheelchairs.31 Before embarking on the main argument, however, it is worth sketching the findings and claims that are being made today on why fat is in fact not as mutable and unhealthy as the medical establishment, the diet industry, and popular culture prompt us to believe. The following discussion is not offered as an exhaustive review of the literature, but rather as an outline of the main trajectories of this literature. [Workshop participants: You can skip the next section and move directly to Part II (page 12), as this next part is not essential to the argument]. I.B.1 Mutability of Bodily Weight 30 cite Foucault, yofi yyy. 31 The suspect categories enumerated in Title VII of The Civil Rights Act of 1964 are mostly immutable categories, such as race, sex, or nationality. This is also true for age (See The Age Discrimination in Employment Act of 1967). The changeable categories, such as religion, are ones that it would seem too invasive for liberty and autonomy to require that one changes in order to avoid discrimination. Indeed, Robert Post demonstrates that mutability is not the factor that underlies which categories become protected by antidiscrimination law: ―Post posits that the underlying question behind antidiscrimination laws that better addresses the real goal is whether the stigmatizing attribute is essential or integral to a person.‖ (William R. Corbett, The ugly truth about appearance discrimination and the beauty of our employment discrimination law, 14 DUKE J. GENDER L. & POL'Y 153, 175 (2007) (Referring to Robert C. Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CAL. L. REV. 1, 9 (2000)). Consistent advertisements for diets and fitness regimes, and medical talk on the need to lose weight, emphasize personal accountability and self control. However, more and more data indicates that genetics, hormonal factors and metabolism, are all factors that predetermine one‘s weight and impede attempts to lose it. Long term radical weight loss is still a challenging enigma to science and medicine. According to a 2001 survey of weight loss studies,5 years after a weight loss diet, subjects maintained only 21% of their lost weight (If one lost 5 kg, in year five they would typically gained 4kg back).32 Additionally, the more weight is reduced, the smaller the changes of sustaining the new weight. Although subjects who exercised regularly had a better chance of keeping their new weight, even their success was limited.33 In other words, most weight losses (through diets, exercise, or surgery) end in regaining the kilograms lost and adding to them yet some more weight within 5 years.34 Cynically phrased, the best way to guarantee weight gain, according to the available data, is by embarking on a weight loss program. Success rates decrease the more radical one‘s weight loss is: If one lost 10% of one‘s weight, one has more chances of retaining the new weight than if one loses 15% or 20% of one‘s weight.35 The nexus between weight and race, and weight and socio-economic status is also tight, to an extent that weakens the personal responsibility and choice paradigm. Socio-economic factors such as income and home location determine one‘s ability to access to fresh produce and fiber-rich foods. For low income families, it is often a rational choice to eat three meals a day in cheap fast food restaurants rather than buy basic ingredients and prepare them at home. Whether one‘s parent has a job that allows him or her to cook homemade dinners from basic produce shapes the degree of processed foods one consumes.36 Similarly, living in neighborhoods that discourage walking or biking is correlated with high weight. Race and ethnicity are strong predictors of weight in the U.S.—partly because of their correlation with poverty,37 but also due to genetics as well as cultural norms and culinary practices. The mutability argument is relevant here because of the aspect of distributive justice. It would be difficult, for example, to tell a young man applying for a job that because he grew in an inner-city neighborhood and reached a high body weight, now he will not get a fair chance based on his merits because he is too fat. This goes against the ethos of freedom of opportunity and of meritocracy. 32James W. Anderson, Elizabeth C. Konz, Robert C. Frederich & Constance L. Wood, Long-term weight-loss maintenance: a meta-analysis of US studies, 74 AM. J. CLIN. NUTR. 579, 582 (2001). 33The survey found that 2.7 years (on average) a quarter of the people who did not exercise maintained weight loss of 6.6% of their original weight, while half of people who did exercised maintain 12.5% of their original weight. See id. at 582. 34 Glenn Gaesser, Is "Permanent Weight Loss" an Oxymoron? The Statistics on Weight Loss and the National Weight Control Registry, in THE FAT STUDIES READER 37-40 (2009) (indicating that solid data about weight loss success is hard to find, and that the 90- 95 figure of failure in long term weight loss ―may not be far from the truth.‖ Also pointing to a direct ration between weight loss attempts in U.S. population and weigh gain of this population). 35 find source. yyy Yofi. 36 Career-driven parents may also choose to allocate their time to work and not to cooking, although they can afford spending these hours at home. In this case we might assume that they will outsource home cooking to an employed caregiver. But more importantly, the type of sensibility I aim to develop in this article would prompt us to ask whether the law should respect parental autonomy about such nutritional choices without sanctioning parents for them. 37 See, e.g., Paul Ernsberger & Richard J Koletsky, Biomedical rationale for a wellness approach to obesity: An alternative to a focus on weight loss, 55 J. SOCIAL ISSUES 221, 244 (1999) (analyzing the evidence that fat people are significantly more likely to be poor and uneducated). I.B.2 Weight and Health A growing body of research suggests that the correlation between fatness and illness is much more complex than is popularly assumed. Paul Campos, for instance, provided a powerful account of the economic interests of pharmaceutical companies, physicians, and insurance companies to convince policymakers and the public that weight is a central factor of disease.38 Such interests contribute to scientific accounts that are biased and falsely amplify the problem, contributing to a sense of public moral panic, and to demonization of people who are considered overweight. When assessing the benefits of weight loss surgeries, for example, researchers measure and document only the success, such as the decrease in blood pressure, but not the risks from anesthesia, infection, or other surgery side effects.39 But research indicate that fat patients who come to their doctor with problems completely unrelated to their weight are being denied treatment until they lose weight, or receive a determined message that they should first lose weight before they complain about anything else.40 This, of course, intrigues a vicious cycle in which fat patients avoid going to the doctor, thus their health indeed deteriorates, but not because of their weight per se: rather, because of the stigma and moral panic that they meet at the clinic. Frequent attempts to lose weight and yoyo dieting cause damages to physical and mental health by increasing cardiovascular disease and increased mortality.41 Metabolic activity in bodies that lose and regain weight slows down, as the body reacts in slower fat burn due to evolutionary survival programming.42 The sense of failure and self unworthiness that accompanies weight regain impairs both the physical and the psychological quality of one‘s life. In more extreme cases of internalizing the 38PAUL CAMPOS, THE DIET MYTH: WHY AMERICA'S OBSESSIONS WITH WEIGHT IS HAZARDOUS TO YOUR HEALTH (2005) Yofi - cite an exemplary paragraph from this book yyy. [for yofi: yyy add the teenage article critique on cause and effect of weight loss.] 39 See Jeanine C. Cogan, Re-evaluating the weight-centered approach toward health: The need for a paradigm shift, In INTERPRETING WEIGHT: THE SOCIAL MANAGEMENT OF FATNESS AND THINNESS 229 (Jeffery Sobal & Donna Maurer Eds., 1999) (reviewing evidence on the distortion of medical research data that is affected by what the author dubs ―the thinness bias.‖); See also Esther D. Rothblum, Contradictions and confounds in coverage of obesity: Psychology journals, textbooks, and the media, 55 J. SOCIAL ISSUES 355, 359 (1999) (Noting the inherently problematic nature of weight-loss studies in psychology journals, and how they are misinterpreted by the media. For example, some of the studies exclude participants with physical health problems, and thus are not able to examine whether weight-loss actually improves health conditions). 40For example, a guidance issued by the British Fertility Society in 2007 suggests that severely obese women should have their fertility treatment deferred until they have lost weight (MacKenna Roberts, Guidelines say obese women should be denied fertility treatment, BIONEWS, Nov. 19, 2007, , http://www.bionews.org.uk/page_13238.asp). Similarly, many British hospitals deny obese patients of joint replacement surgery (James Chapman, Millions too fat for NHS surgery, MAILONLINE, May 1, 2007, http://www.dailymail.co.uk/health/article-451575/Millions-fat-NHS- surgery.html). 41 See, e.g., Jerome P. Kassirer & Marcia Angell, Losing weight - An ill-fated New Year's resolution, in 338 N. ENGL. J. MED. 52, 52 (1998) (Noting that failed attempts to lose weight often brings to guilt and self-hatred; and that anti-obesity and weight-loss drugs are linked to medical problems, such as a loss of essential nutrients, potentially fatal pulmonary hypertension, and valvular disease.); Paul Ernsberger & Richard J. Koletsky, Weight cycling and mortality: Support from animal studies, in 269 JAMA 1116 (1993) (Password needed - Gal: please find pincite in this article for the claim above. If you can, write a parenthetical description of what the article claims about this, or simply point me to the appropriate pages and I will write it xxx); Frances M. Berg, Health risks associated with weight loss and obesity treatment programs, 55 J. SOCIAL ISSUES 277, 279, 282-4, 287-9 (1999) (examining the unhealthy influence of diet techniques such as pills and surgeries). 42 See, e.g., Gretchen Voss, When you lose weight — and gain it all back, MSNBC, June 6, 2010, http://www.msnbc.msn.com/id/36716808/. medico-cultural imperative to lost weight, some individuals are ―literally dying to be thin‖,43 through usage of dangerous weight loss drugs, extreme surgery, and development of anorexia nervosa. Access to comprehensive and constant medical services is also compromised for fat people, as physicians— operating from a medical and cultural paradigm that fat is unhealthy—tend to focus on what they see as the patient‘s urgent imperative to lose weight while suspending or ignoring treatment in other symptoms and ailments. Fat patients often leave the doctor‘s office with no treatment for their ear infection or joints problem but the sole instruction to lose weight and then come back. Many do not return to the doctor, deterred by the focus on their being a failure and the lack of responsiveness to their physical distress. There is well documented evidence of accessibility and accommodation problems in medical treatment for fat individuals: treatment beds, for example, are often too narrow or not stable enough for very fat patients to lie on, which is another reason why fat individuals do not seek appropriate medical care.44 These hampers to medical care put a different explanation to the grim data on the bad health of fat individuals: If they do not receive appropriate medical care on their overall health problems, some unrelated to weight, then the data on the nexus between weight and health should not be explained as caused by the weight itself, but rather by the medical neglect that fatness prompts.45 Money is a big factor in the debate about the extent to which the law and the state could and should legitimately intervene in citizens‘ weight. The conception that weight is unhealthy prompts conflated assessments on its burden on national budget. The cost of fat is mainly calculated as the cost of health insurers in treating diseases and conditions understood as a factor of high weight, but there are other factors that are often added to this equation. For example, the cost of public programs to encourage weight reduction and prevent weight gain, or the cost of lost workdays of the fat people who are so unhealthy. As mentioned earlier,46 even much more remote costs are thrown into the overall calculation of the cost of fatness, such as fat people‘s alleged increased contribution to global warming47 or the contagiousness of their fatness.48 Those challenging the direct line between fatness and disease argue, however, that there are grave costs to the fat phobic culture that should also enter the calculus. For example, the cost of spending on diet products (that often do not work), medical weight loss interventions, and the psychological and physical treatments required when diets fail.49 Similarly, the millions spent by government and insurers on erroneous and futile weight loss 43See Jeanine C. Cogan & Paul Emsberger, Dieting, Weight, and Health: Reconceptualizing Research and Policy, 55 J. SOCIAL ISSUES 187, 189 (1999). 44 Cogan and Ernsberg dub this ―a weight-centered approach toward health.‖ See id. at 188; See also Susan Trossman, Obesity on the Rise Leads to Workplace Challenges, Patient Concerns, REDORBIT, May 11, 2005, http://www.redorbit.com/news/health/149270/obesity_on_the_rise_leads_to_workplace_challenges_patient_concerns/ (noting that in American hospitals rooms are too small for obese patients, beds are too narrow, chairs have arms and even larger blood pressure cuffs tend not to fit). 45 Yofi: cite resources yyy 46 nnn add internal reference 47 [nnn] 48 [nnn] 49 Cogan & Emsberger, supra note 11, at 188. campaigns should also be factored in.50 Finally, the small extent to which weight is reducible for the long run—combined with the fact that this immutability is a well kept secrete in the face of the diet industry, shows like ―The Biggest Loser,‖ and ubiquitous media reporting on obesity—effects the health of fat people: Even if it is still maintained that thinness is good for health and fatness is bad, repeated failure to lose weight lead to yet more attempts to do so, which, as mentioned before, leads in turn to worse health.51 To conclude this section, the data reviewed here indicates that perhaps the growing social problem is not the increasing rates of fatness in the population, but the increasing and ever more radical pursuit of thinness. The deeper the internalization that fat is bad, the stronger the steps taken to lose weight, and the more costly and severe the consequences of such attempts. 50 See Id. 51 See Cogan & Emsberger, supra note 11 (claiming that weight loss programs cause more damage the good, because of the unhealthy effect of the quick and repeated weight chances and the uses of unhealthy ways to loose weight such as smoking, laxatives, or very low calorie diet. Furthermore, the authors claim that in a social perspective, weight loss programs cause many ―under weight‖ diseases). II. The Argument from Liberty Liberty is, of course, a basic tenant of modern liberal legal regimes. But liberty is an open-ended and abstract concept, and the content that it received over its career in political and legal thought has been ever evolving and contextual. I would like to argue here that modern legal understanding of liberty has been based on a disembodied, mind-focused understanding of human experience, and that this concept should be broaden as to include an appreciation of bodily traits and experience, including body size, as an important locus of autonomy and freedom. II.A: A Very Sketchy Overview of Mind-Body Dualism Rene Descartes, considered one of the founding fathers—if not the founding father of modern philosophy, is recognized in contemporary philosophical discourse as setting the foundations of a modern dualist understanding of mind-body.52 Since the center of my project is not intellectual history, I will focus on Descartes‘ ideas and their aftermath because they occupy the scholarly critique of the denial of the body in modern sensibility.53 In Descartes‘ quest to ―rid myself of all the opinions I had adopted‖ and ―establish a firm and abiding superstructure in the sciences,‖ Descartes realizes that ―[a]ll that I have, up to this moment, accepted as possessed of the highest truth and certainty, I received either from or through the senses. I observed, however, that these sometimes misled us.‖54 The first step in rebuilding certain knowing from scratch, then, should be to completely suspend what sensory data can teach, and rely only on knowledge that is not dependent upon the potentially misleading observation through the senses Descartes decides to suspend, then, all learning that emanates from anything that the body can teach. ―I will consider myself as without hands, eyes, flesh, blood, or any of the senses, and as falsely believing that I am possessed of these‖.55 Thus, for example, sciences such as astronomy, medicine, or physics should be put aside as sciences that deal with matter (―consideration of composite objects‖), as opposed to arithmetic and geometry, who are depended not on observation but on pure thought. ―[W]hether I am awake or dreaming, two and three make five.‖56 52 This shift could be traced back to other origins, such as the Judeo-Christian separation of body and soul, (xx add citation yofi) or even in Platonic infatuation with knowledge that is not based on the senses and on concrete material existence, and his view that the soul is eternal, which grants it advantage in access to the truth compared to the finite body. For a discussion of the history and philosophical origins of mind-body dualism, see Howard Robinson, Dualism, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY, pt. 1 (Edward N. Zalta, ed., 2003), available at http://plato.stanford.edu/archives/fall2003/entries/dualism/. 53I could have delved, however, on additional resources to the mind-body separation, from Plato, through Christianity, to Kant. 54 RENE DESCARTES, MEDITATIONS ON FIRST PHILOSOPHY, 10 (John Veitch, trans., 1901), available at https://docs.google.com/viewer?url=http://www.filepedia.org/files/Descartes'%2520Meditations%2520on%2520First%2 520Philosophy.pdf. 55 Id. at 13. 56 Id. at 11 This bold intellectual experiment in learning from afresh through radical doubt leads Descartes to question whether he himself exists, since his presupposition was, as we know, that all that is physically around him is nothing but a dream. In finding the answer to this query, Descartes reaches the well known maxim, cogito ergo sum: ―Am I so dependent on the body and the senses that without these I cannot exist? But I had the persuasion that there was absolutely nothing in the world, that there was no sky and no earth, neither minds nor bodies; was I not, therefore, at the same time, persuaded that I did not exist? Far from it; I assuredly existed, since I was persuaded ... Doubtless, then, I exist, since I am deceived.‖57 And in the more famous phrasing: ―for there is a repugnance in conceiving that what thinks does not exist at the very time when it thinks. Accordingly, the knowledge, I THINK, THEREFORE I AM, is the first and most certain that occurs to one who philosophizes orderly.‖58 For Descartes, the next step seems clear and logically sound: ―That we hence discover the distinction between the mind and the body, or between a thinking and corporeal thing.‖59 In Descartes‘ view, the body, as opposed to the soul, is a machine, ―devoid of subjectivity and intention,‖60 and could therefore be reshaped in a limitless fashion by science, medicine, and choice of the soul that occupies it. This conclusion has been immensely influential in the main tradition of Western philosophy since Descartes.61 Thinking purely, without dependence on the body, is a superior activity to which everyone should aspire, and the only activity that can produce stable meaning. The body remains in this tradition opaque, misleading, and insignificant.62 But Cartesian dualism has not only shaped philosophy of mind, in its quest for understanding how we can know the world, and in its ongoing exchange with materialist approaches of modern science.63 Rather, dualistic views have been shaping diverse fields, from literary theory (searching for big and abstract ideas in the text and for structure while neglecting embodied practices),64 to the methodology of historical research (which had focused on written texts and big ideas rather than on everyday material experiences),65 or feminist 57 Id. at 14. 58RENE DESCARTES, THE SELECTIONS FROM THE PRINCIPLES OF PHILOSOPHY, ¶ VII (John Veitch, trans., 2003), available at http://www.gutenberg.org/cache/epub/4391/pg4391.html (emphasis in the original). 59 Id. ¶ VIII. 60Drew Leder, A Tale of Two Bodies: The Cartesian Corpse and the Lived Body, in THE BODY OF MEDICAL THOUGHT AND PRACTICE, 17, 20 (Drew Leder ed., 1992). 61 For a discussion of the influence of Cartesian dualism on later philosophical thought, see ROBERT H. WOZNIAK, MIND AND BODY: RENE DÉSCARTES TO WILLIAM JAMES, chs. 1-3 (1995). 62 See, e.g., SUSAN BORDO, UNBEARABLE WEIGHT: FEMINISM, WESTERN CULTURE, AND THE BODY, 1-3 (2004) (analyzing the poem ―The Heavy Bear‖, by 20th century American poet Delmore Schwartz, in which the body is represented as with me but not ―me,‖ lacking intelligence or intentionality, clumsy, gross, disgusting and capable of aggression, an obstacle to self expression, and ―a prison of the sole and confounder of its projects‖.) 63 "Dualism", Online Dictionary of Philosophy of Mind, 2006 (Chris Eliasmith, ed.), http://philosophy.uwaterloo.ca/MindDict/dualism.html 64 add reference to virginia wolfe‘s lab and the two women, or the eating thing, if you have time xxx for yofi 65Recent critical approaches to traditional historical method recognize and animate the focus on bodily experience, as is exemplified by Carlo Ginzburg‘s micro-history (CARLO GINZBURG, THE CHEESE AND THE WORMS: THE COSMOS OF A SIXTEENTH-CENTURY MILLER (John and Anne Tedeschi trans., 1992)). See also Forum: History of Emotions, in 28 GERMAN historians who pose questions such as ―who cooked the last supper?‖ thereby focusing not on abstract ideas but on embodies and concrete practices.66 As I will illustrate below,67 mind-body dualism also had decisive influence on modern legal thought, and this influence has had, in my thesis, a significant role in contemporary law‘s obliviousness toward the body in general body-size in particular as important sites of rights. II.A.1 Contemporary Critique of Mind-Body Dualism The last four decades have seen a flourishing, even an outburst, of studies that position the body as an essential and central site of human existence. Such critical strands emerged from a sense of unease from the omission of the body in understanding culture, psychology, history, and politics.68 Scholars have begun to point out that the erasure of the body is not only unconvincing, but it also serves to sustain the exclusion of marginalized groups such as people of color, women, Jews, gays, or people with disabilities. Stigma and prejudice toward such groups have been in large part directed at their bodily features in two significant ways. First, the ―essence‖ of members of marginalized groups has been considered more bodily-focused and thus less capable of rational thinking, abstract scientific inquiry, or artistic, ethical, and spiritual achievements. Women, for example, have been associated with the uncanny and uncontrollable nature, thus viewed as secondary, and even dangerous, to the development of human civilization.69 Blacks have been portrayed as sub-human due to their attributed amplified sexual potency and animal-like body features, viewed as signifying fundamental bodily difference from the ―normal‖ (white) human. Second, their bodies were considered inferior, deviant, disgusting, and dangerous. Myriad academic literature is available today on how moral imperatives, gender conventions, and class and race distinctions are ―engraved‖ and ―inscribed‖ on the body.70 Shifting the research focus to embodied experience, then, was an intellectual move with (potentially) important HISTORY: THE JOURNAL OF THE GERMAN HISTORY SOCIETY, 67, 68-9 (2010) (historian Uffa Jensen explaining the growing field of history of emotions as belonging to ―a move in cultural theory similar to the ‗spatial turn‘, the ‗performative turn‘, the ‗body turn‘.‖) 66 See Rosalind Miles, Who Cooked the Last Supper: The Women‘s History of the World (2001). 67 See part xxx infra. 68See, e.g., Seyla Benhabib‘s critique of social contract theories such as Thomas Hobbes‘s, which portray a ―vision of men as mushrooms in an ultimate picture of autonomy,‖ thus erasing the role of maternal pregnancy and care from understanding the human condition (SEYLA BENHABIB, SITUATING THE SELF: GENDER, COMMUNITY, AND POSTMODERNISM IN CONTEMPORARY ETHICS 156 (1992). 69See, e.g., Sherry B. Ortner, Is Female to Male Like Nature to Culture?, 1 FEMINIST STUDIES 5 (1972) (exploring the way anthropology has understood women through their association with nature, and considering whether this linkage is an impediment to women‘s equality). 70See, e.g., PIERRE BOURDIEU, DISTINCTION: A SOCIAL CRITIQUE OF THE JUDGMENT OF TASTE (Richard Nice trans., 1984)(1979) (tracing class differences to bodily practices such as how people eat, what they wear, and how they move about); MICHELLE FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (Alan Sheridan trans., 1995)(1975) (using the metaphor of an internalized panopticon—a relentless self supervision of every aspect of one‘s embodied practice—as a way to explain the modern self and the powers to which it is subjected); IRIS MARION YOUNG, ON FEMALE BODY EXPERIENCE: "THROWING LIKE A GIRL" AND OTHER ESSAYS (2005) (exploring women‘s embodied experiences as a way to understand the social meaning of gender). implications for promoting equality and universal humanness.71 This new attention to the body has been dubbed ―the body turn,‖ ―the embodiment turn,‖ or ―the corporeal turn.72 Scholarly attention to the body has not stopped at research related to stigmatized groups. Today it engages scholarship of ―unmarked‖ and hegemonic groups as well; a shift signified by fields such as masculinity studies and whiteness studies.73 Another vain of recent scholarship is located outside of the identity paradigm (blackness-whiteness, masculinity-femininity etc.) but rather explores embodied meanings in themes and fields that vary from modern dance74 to geography.75 Such accounts relate to the body, then, not merely as a physical fact regarding the presence of inanimate matter in which mind is clothed, but as an important site of meaning- making, crucial for understanding human experience. They recognize the body as a site through which the self is constituted and maintained, and via which the powers of culture, language and society manifest themselves and sustains their grab. Another important insight emerging from the ―embodiment turn‖ is that the human body is far from a natural, biological fact. Rather, it is constructed by socio-cultural norms, requirements, and habits.76 Judith Butler famously observed, for example, that one‘s sex identity (male/female) or sexual orientation involve constant acts of reiteration, citation, and ―performative repetition‖ of norms associated with one‘s gender.77 And Kendall 71 [Note: See, e.g. Martha Nussbaum, Hiding from Humanity xxx (cite book date and subtitle, if there is one) (… yyy yofi) ] 72 See, e.g., Barbara Kirshenblatt-Gimblett, The Corporeal Turn, 95.3 JEWISH QUARTERLY REV. 447 (2005) (arguing that the corporeal turn in Judaic studies has been causing anxiety in this field, but not because this turn abandoned the text—for it ―brought a concern with the body to the text‖—but because the corporeal turn is associated with anxiety about feminism, post-modernism, and post-Zionism.); Soile Veijola & Anu Valtonen, The body in tourism industry, In TOURISM AND GENDER: EMBODIMENT, SENSUALITY AND EXPERIENCE 13, 16 (Annette Pritchard, Nigel Morgan, Irena Ateljevic & Candice Harris eds., 2007) (stating that their research aims at contributing ―to the blossoming ‗embodiment turn‘ in both social sciences and tourism studies.‖); Martine Abramovici, The Sensual Embodiment of Italian Women, in id. at 107, 110 (discussing the ―embodiment and corporeal turn in tourism studies‖ as an intellectual shift that enables understanding touristic experience as sensory, and as one that goes beyond ―the passivity of the ‗tourist gaze‘‖); Shoji Nagataki & Satoru Hirose, Phenomenology and the Third Generation of Cognitive Science: Towards a Cognitive Phenomenology of the Body, 30 HUMAN STUDIES 219, 224 (2007) (referring to ―the embodiment turn‖ in the history of philosophy as a counter to Richard Rorty‘s ―linguistic turn‖). 73 See, e.g., CRITICAL WHITE STUDIES: LOOKING BEHIND THE MIRROR (Richard Delgado & Jean Stefancic eds., 1997) (featuring articles such as ―Growing up (what) in America?‖ and ―The End of the Great White Male‖); RICHARD DYER, WHITE: ESSAYS ON RACE AND CULTURE (1997) (cultural analysis of the representation of whiteness in literature, cinema, art, and popular culture); THE MASCULINITY STUDIES READER (Rachel Adams & David Savran eds., Blackwell Publishers, 2002) (exploring themes such as the macho, sex differences, and honor and shame); MASCULINITY STUDIES AND FEMINIST THEORY: NEW DIRECTIONS (Judith Kegan Gardiner ed., 2002) (mapping both the productive and the tensed intercessions between masculinity studies and feminist theory). 74 See, e.g., Tal Kohavi, Between Dance and Anthropology (forthcoming 2011, Haifa University Press) (Hebrew) (arguing – through the case of the body – that the body in itself is a site of meaning production and outlining ways to access these meanings). 75See, e.g., Robyn Longhurst, The Body and Geography, 2 GENDER, PLACE AND CULTURE 97 (1995) (observing that the body is portrayed in geography as the passive and weak partner of the dominant and potent mind). 76See, e.g., Seyla Benhabib, The Generalized and the Concrete Other: The Kolberg-Gilligan Controversy and Feminist Theory, 4 PRAXIS INTERNATIONAL 402, 410 (1985) (―Identity does not refer to my potential for choice alone, but to the actuality of my choices, namely, to how I as a finite, concrete, embodied individual shape and fashion the circumstances of my birth and family, linguistic, cultural, and gender identity into a coherent narrative that stands as my life‘s story‖); See also CAROLE PATEMAN, THE SEXUAL CONTRACT 206-7 (1988) (arguing that prostitution and surrogacy should be outside the realm of commodified services because unlike regular labor, where the employer is interested not in the employees body but in her work, in prostitution and surrogacy the body itself is used, and no prosthesis will do. And the body is, according to Pateman, integrally related to the self). 77 See JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY (1990); But cf. Kelly Oliver, What is Transformative about the Performative? From Repetition to Working-Through, in CONTINENTAL FEMINISM READER 168, 168-173 Thomas makes a similar point about race, maintaining that ―‗race‘ is a verb, that we are ‗raced‘ through a constellation of practices that construct and control racial subjectivities.‖78 II.A.2 The Body Turn in Law This intellectual development has not skipped over legal studies.79 Legal theory that deals with underrepresented, stigmatized, or underprivileged groups (feminist jurisprudence, Critical Race Theory, queer legal theory, and Disability Legal Studies) explicitly turned to deconstruct the mind-body dualism and to understand the ways in which bodily differences constitute identities and play a central role in the legal subject‘s life. Moreover, physical appearance itself has been the subject of wide area of scholarship in the areas of discrimination 80 and of basic liberties.81 A consistent vain in the legal scholarship on appearance is a refusal to accept the hierarchical distinction, prevalent in Western philosophy, between inner identity and outer appearance (or between the form and substance of identity, or, more generally, between signifier and signified). The claim that personal appearance is not a mere facade, a surface that is essentially separable from the depth of the person, has been donning more and more theoretical flesh, but also some judicial and legislative recognition. But while studies convincingly demonstrated that bodily practices, including grooming, dress, and style of pronunciation, do not merely represent the ―real‖ person behind it, but are part of a bidirectional dynamics in which how one looks and is socially perceived shapes who one is–the theoretical shift towards the body is still missing in the legal discourse about fat rights. This article wishes to lay out the basic theoretical premise to begin filling this gap. II.A.3 Habeas Corpus Redux: Returning to the Basis of Fundamental Rights I suggest understanding the move of framing a right of fatness as a return to the original meaning of the idea of basic liberties.82 Arguably, most liberties whose scope and content are currently debated by courts and molded and remolded by legislators and agencies, are ones that could be described as located on the abstract human faculties. In other words, they are mind (rather than body)-centered; they concern thought, conscience, belief, opinion, communication etc. Such are, for example, freedom of speech and religious freedom, freedom of (2003) (arguing that Butler‘s proposal ―that a theory of performative agency better serves political theory than a theory of sovereign agency‖ is insufficient and needs supplementing through critical self-analysis and interpretation.); Seyla Benhabib, Feminism and Postmodernism: An Uneasy Alliance, in FEMINIST CONTENTIONS: A PHILOSOPHICAL EXCHANGE 17, 21-30 (Seyla Benhabib, Judith Butler, Drucilla Cornell, Nancy Fraser eds., 1995) (doubting Butler‘s notion that there is no self behind the mask of its representation for it debunks women‘s fragile autonomy as well as any possibility for new ethics, politics, or aesthetics). 78Kendall Thomas, The Eclipse of Reason: A Rhetorical Reading of Bowers v. Hardwick, 79 VA. L. REV. 1805, 1806-7 (1993). 79 See, e.g., Alan Hyde, Bodies of Law. 80 Carbado and Gulati, Camille Rich, Patrick Shin, xxx. 81Yoshino, Covering; Tirosh, Adjudicating Apppearance. See also Aeyal M. Gross, Gender Outlaws before the Law: The Courts of the Borderlandss, 32 Harvard Journal of Law & Gender 165 (2009) (analyzing the doctrine of fraudulent gender presentation and its normalizing effects on the dichotomous and stable understanding of gender and sexuality). 82 I am grateful to Talia Fisher for drawing my attention to this point. association–-including the right to unionize, freedom of occupation, the right to property, privacy rights (most— though certainly not all—debates today do not concern body-related privacy, but rather privacy related to speech and communication, dignity and equality. The historical basic rights to be recognized by embryonic liberal democracies were, arguably, rights that are anchored in the body. I refer here to rights and liberties that were generated by the political philosophy of Enlightenment and crystallized in monumental documents such as the Magna Carta, the American Declaration of Independence and Bill of Rights.83 Apart from setting limits on the King‘s power to tax and to intervene in church affairs, the Magna Carta anchors rights relating to due process and humane punishments in language such as ―Nothing in future shall be given or taken for a writ of inquisition of life or limbs, but freely it shall be granted, and never denied‖84 and ―No freeman shall be taken captive or imprisoned, or deprived of his lands, or outlawed, or exiled, or in any way destroyed, nor will we go with force against him nor send forces against him, except by the lawful judgment of his peers or by the law of the land‖.85 Both focus on bodily integrity and autonomy.86 Common law‘s entrenchment of the right to Habeas corpus87 (literally, ―We command that you have the body‖88) is still considered a milestone in the development of basic liberties. It is understood as a narrow right that solely concerns the right to be physically present, and does not necessarily entail a right to due process.89 Hobbes vindicates the right to life, but does not go further to grant the subjects of the ruler any freedom of speech, thought, or association. Locke delineated natural and non-infringeable rights somewhat more ambitiously, and adds to the right to life the right to property and the right to liberty: ―Every one, as he is bound to preserve himself … ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice to an offender, take away or impair the life, or what tends to the preservation of 83 Surely, any right that I classify as focused on the body has important mind aspects. The damage of physical harm is sometimes more significantly mental and psychological than solely physical. Similarly, the rights and liberties I describe as mind-oriented have important bodily aspects. Constitutional doctrine on privacy, for example, has significantly centered on cases regarding abortion or same-sex intercourse. My classification is based on a most literal reading of the right in question. Despite this simplicity, I believe this classification is useful in order to recognize the sources of the present day difficulty of legal discourse in recognizing the importance of protecting against harms to individuals that are prompted by their body size. I also do not wish to undermine my own critique of the mind-body dualism. This sketchy classification of rights according to their focus on mind or on body is therefore for momentary analytical purposes alone. 84 Magna Carta Libertatum (1215), art. 36 85 Id. art. 39 86 See also id. art. 41 (protecting the freedom of movement of merchants, and noting that if in time of war such merchants are detained, it will be ―without injury to their bodies or goods‖.) 87 Habeas Corpus Act of 1679; See also U.S. CONST. art. I, § 9, cl. 2, where habeas corpus is protected in US constitutional law 88 4 OXFORD ENGLISH DICTIONARY, 849 (J.A. Simpson & E.S.C. Weiner eds., 2nd ed. 1989) 89Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, in 120 HARV. L. REV. 2029, 2037 (2007) (noting that habeas corpus protects the right to lawful detention); Carole J. Yanofsky, Withrow v. Williams: The Supreme Court's Surprising Refusal to Stone Miranda, in 44 Am. U.L. Rev. 323 (1994) (courts interpret habeas corpus narrowly); Herrera v. Collins, 506 U.S. 390 (1993) (the right to habeas corpus does not contain the right to introduce new evidence proving the defendant's innocense). life, the liberty, health, limb, or goods of another.‖90 But the liberty that Locke defends is not the wide array of actions related to thought, speech, and religious practices, as we find about a century later in John Stewart Mill‘s On Liberty, for example. Locke‘s liberty concerns the duty of the government and of fellow men to allow an individual to survive: to make a living and be free of economic intervention and to be subject to a fairly governed rule of law.91 The right to be fat, as a right whose primary locus is the body, could be viewed, then, as part of a move to retrieve the origins of basic rights discourse. II.B. Phenomenological Accounts of Fatness Phenomenological philosophical streams emphasize that it is crucial to understand the body not as an object, but as a ―lived body;‖ as a body of one‘s own. Phenomenology rejects as unsatisfactory the traditional view of the body as a thing, a derivative phenomenon that could be scientifically worked-through. From a phenomenological perspective, foundational notions such as liberty, autonomy, freedom, experience, or agency would be impossible to explore without tracing their bodily dimensions.92 ―The lived body is the body as immediately experienced, that is, as an organ for action in the world, and as a vital relation to the world… [T]he body is that through which [a person] moves through the field of daily life.‖93 It is clear why, from this understanding, the body has not merely a passive role in its bearer‘s life, but rather an active role of constituting one‘s sense of self and of shaping one‘s relationship to objects and to other humans. The body in this view has, according to Merlou-Ponty, the potential for a given network of situations and actions.94 From a phenomenological perspective, one‘s bodily weight is not only (and perhaps not even mainly) a biological fact, measured and explained by body fat percentage, BMI, and other such indications. It needs to be understood, including in legal theory, through its social and personal meanings. Phenomenology of the body can have valuable contribution to developing such an understanding. The phenomenological critique points to the reductionism and limitation in current scientific accounts of human life. In order to be counted as a valid scientific statement, data has to be from the external point of view, 90 4 JOHN LOCKE, THE WORKS OF JOHN LOCKE IN NINE VOLUMES § 6 (12th ed. 1824) (1691), available at http://oll.libertyfund.org/title/763/65394/1600838 on 2010-08-25 91 For an illuminating historical contextualization of Locke‘s idea of liberty, see FRIEDRICH A. HAYEK, THE CONSTITUTION OF LIBERTY, 162-175 (1960). See also NATHAN TARCOV, LOCKE‘S EDUCATION FOR LIBERTY (5th ed., 1999)(1984) 92 Legal scholars have also attempted to develop phenomenological accounts from other perspectives, such as that of the judges. See, e.g., William E. Conklin, The Phenomenology of Modern Legal Discourse: The Juridical Production and the Disclosure of Suffering (1998), 135-168 (analyzing Brown v. Board of Education from the perspective of Justice Holme‘s lived world.) 93 Moss in Leder, 181. Husserl, one of the fathers of phenomenology, continues Moss, describes the body as that by which humans hold sway in the world. id. 181. 94 Maurice Merleou-Ponty, Phenomenology of Perception, T & F books, 2nd ed., 2007 ( (1945), xxiii. quantifiable, generalizable, and measurable. Living things (humans, but also animals, although they are not part of our current discussion) cannot be explained and observed only in terms of material parts and processes. Living organisms, even when viewed through the biological paradigm, should be understood as more than ―highly complex physical mechanisms constituted only by their distinct material parts.‖95 Personal physique should be understood not merely through quantitative means, but also via ―qualitative differences in the individual‘s relations to the physical environment, in personal temporality and spatiality, in relationship to the family and social world, and in the struggle for identity.‖96 Weight gain and weight loss are, accordingly, ―never merely a phenomenon of the physical body… They are always an event of the human body,‖ and as such transform one‘s relations to the world.97 The meaning that is given to the fat body is shaped, of course, by its meaning in medical and cultural discourses. ―The physician and the clinic produce a context of vocabulary, concepts, images, and interventions which permeate the everyday life of the obese individual.‖98 In the medical context, philosopher of medicine Drew Leder proposes replacing the mechanical approach to illness in a phenomenological approach, which considered the ―lived body‖ as a central factor in understanding the patient‘s condition. In the context of fat, it would entail looking beyond measures such as BMI, blood pressure, fats in the blood, heart bit rate etc. The phenomenological approach ―holds that the body of a living being has an essential structure of its won which cannot be captured by the language of concepts used to explain inanimate nature.‖99 Understanding any physical condition entails referring to how we engage in the world through our body—―our senses, motility, language, desired.‖100 The lived body is not only how we carry ourselves in the world, but how the world comes to be for us. In other words, the body has a constitutive role for us. It takes a significant part of creating our environment, in the formation of meaning, relationship, and sense of self. Importantly, phenomenology does not deny the material aspects of the body, the sense in which it is an object or a thing. However, it is a view that maintains that it is not only this—that the body also has subjective aspects, and that it is an intentional entity. Leder provides an example of a patient suffering from headache and dizziness, who is diagnosed by the traditional medical tools as suffering from hypertension (high blood pressure). His example could be easily adapted to a situation of a fat person complaining about these symptoms, and his proposed approach demonstrates well the approach this article seeks to promote, so here I make minor adaptations to his 95 ] See Chris Oleson, ―Remembering the Phenomenon of Life‖ (Review of Hans Jonas, The Phenomenon of Life: Towards a Philosophical Biology, The Westchester Institute, available at http://www.westchesterinstitute.net/index.php?option=com_content&view=article&id=372). 96 Moss in Leder, 179. 97 M. Boss, cited and translated in Moss in Leder, 181. 98Moss in Leder 182. See also p. 188-9: describing the ―identity-depleting battle‖ in an environment where ―from infancy she is immersed within a total cultural milieu, permeated by the concepts and language of a medicine which serves to define her body and its size, in its many meanings, from her earliest self-awareness as a young woman with a body.‖ 99 Leder 25. 100 25 description. Let us say that the patient described above is also overweight. A physician that operates according to the prevalent medical paradigm would prescribe low salt diet and medication to lower the blood pressure, and also on a change of diet and exercise to lose weight. But a physician that takes a phenomenological approach would also inquire into the experience of the patient in the world (or to the ―existential etiology‖ of the disease). Perhaps she has a stressful job situation, and also feels like a constant failure because she is unsuccessful in losing weight. The sense of limitation and frustration lead the patient to a clenched fist, a sore neck, and constricted arteries. Her sense that she is living in a constricted world have manifested itself through her musculature. So, too, is her sense that she is always behind, not catching up on her duties and obligations. ―In her struggle to compress time, even her visceral functions - breathing, heartbeat—become compressed and accelerated in ways that can lead to dysfunction.‖101 When things to too slowly (e.g. a meeting with a slow conversationalist, or too slow a pace of weight loss), she clenches the side of her chair, closes her fists, and taps her food. She reaches for a high-calorie and high-cholesterol fast-food lunch. All of those aspects can contribute to the development of her illness. And they should be part of the treatment as well. The patient‘s disease is also a dis-ease, writes Leder.102 Understanding it through biology and genetics is insufficient, because it does not provide an understanding of the patient‘s experience of hypertension in her lived world. An effective treatment will include the bodily behavioral symptoms, and the psychological dimensions of the illness. The fixing that needs to be done is not just of the body as a machine, but of the existential preconditions of the disease. The treatment suggestions might include looking into her job situation, and considering to change it, and seeking tools to reduce tension by finding ways to ―let go‖ or slow down, perhaps through visual imagery or cognitive therapy.103 It would also mean trying to quiet down the judgmental internal voices of frustration about the too-slow weight loss, concentrating of feeling good in her current body, relaxing the tension, and finding ways to do things with her body as is, and to be present in it and satisfied in it exactly as it is. While therapy and counseling might be longer and more expensive than the relatively quick and cheap recourse to medication, ―the ‗dis-ease‘ in its broader sense, involving modes of constriction, acceleration, and dissatisfaction, is apt to progress and surface elsewhere in the lived body.‖104 [Workshop participants: I have truncated the rest of this section for brevity‘s sake. I lay out the argument that eating is not like fueling the car or charging the battery, in that it has strong emotional aspects, as well as symbolic meanings and varying communal and familial contexts. Similarly, our body size reflects a whole array of often un-utterable and not fully clear forces that are richer than what caloric consumption and burn can explain and reflect. Body size has to do with expectations from myself and by others regarding gender, sexuality, class, and age; it has to do with subtle ongoing everyday negotiations between one and oneself: internal dialogues about how to live. In short when law or society tell individuals to lose weight, this imperative reaches far beyond the technical aspects of caloric consumption and physical activity: it penetrates areas of personhood that in other contexts we would feel certain that such areas should be protected from interventions by both the law and fellow men.] 101 28. 102 29. 103 30. 104 30. II.B.1 The Before and After Rituals: Fatness as a Future-Grounded Identity Most people perceiving themselves as fat experience the center of gravity of their identity in the imagined, post- transformation future. Often, their identity is experienced as a limbo between a past in which things were right, and a future that will recover this past. The weight loss is often conceived as an act of restoration, in which the true self, with the confidence and strength that it used to have, will come back with the weight loss.105 Samantha Murray describes the experience of her fat body as one in which ―there is a sense of suspension, of deferral, of hiatus. One is waiting to become ‗thin‘, to become ‗sexual‘, waiting to become.‖106 The discourse around fat people is past-centered and future centered. It is all about the factors that lead to fatness, and then it is about the way to end it. Being now is denied, withheld, and unattended to. People undergoing a weight-loss surgery often relate to the surgery day as a ‗re-birth date‘, as an opportunity to be reborn, or as a ―take two‖ of one‘s life. This narrative of dramatic transformation and an opportunity for an all new fresh start is also manifest by the practice of ―before and after‖ photographs, illustrating the dramatic change, sometimes to the point where it is hard to recognize the two images as photos of the same person. 107 In other words, the weight-loss accounts portray the person embodying a fat body as inauthentic, as a thin person trapped in fat. The quest of the dieting person is to find ―the thin person hiding inside you.‖108 Interests of physical and mental health require that our culture and law open up the possibility for fat people to occupy the present; to be here now. Rather than suspending their potential for a full and prosperous life, fat people need to be permitted to learn to live fully in the present: To be physically active, outgoing, and outreaching, to be in touch with their present body, its needs, its desires, its beauty. It is an identity whose center of gravity, its main locus, is the process of trying to change, of correcting the self. ―[N]othing justified a failure to pursue the holy grail.‖ 109 The mechanistic approach described earlier110 is intensified when obese people meet doctors. On top of the usual denial of the relevance of patient‘s experience, the primary and often singled-out bodily factor that receives attention is the patient‘s weight. Other factors of the patient‘s bodily condition, even if they are unrelated to weight or if they require a more pressing treatment than the weight, do not receive attention. And the attention that the weight receives is of the negating kind: fat is bad, and needs to go away. Quickly. For many fat people diets are a way to suspend dealing with current issues and challenges in their lives: careers, relationships, etc. As clinical psychologist Db Burgard told the New York Times, for many dieters ―the pursuit 105 See Throsby, Body and Society, 122. 106 Murray 155. 107 Throsby, Body and Society, 118. Moreover, ―the pre-transformation body [is conceived] as discordant with the true self.‖ Throsby, Body and Society, 19. 108 Throsby, Body and Society, 19). See also Moss in Leder, p. 190 (finding obese women as often feeling that ―this body that you see is never me, I am always the beautiful personality that resides invisibly within.‖ 109 Corbett, Duke, 154. 110 See mind body dualism part, the discussion on Leder. of thinness as a dream is a place holder... It gets in the way of asking, ‗What is it I am dreaming of ?‘‖ Burghard further says that a dieter my think: ―‗If I could just lose weight, all that will take care of itself,‘ so they don‘t invest in getting what they want, [instead] they invest in weight loss.‖111 II.B.2 Alternatives to the Future Grounded Identity When a fat blogger explains why she would not undergo a weight-loss surgery, she names reasons such as ―I trust my body,‖ she rejects the dualistic notion of mind and body, and the medical paradigm for understanding her fat body: ―For me — and I only speak for myself — this kind of elective surgery would betray a lack of trust in my body and its ability to sustain me. My body is, ultimately, the only thing I can truly own; indeed my body is me, we are not separate and discrete entities, and I am not giving directions to a remote object that obeys. We move and work and live together as one, and for me, this surgery would divorce us, would shatter that connectedness and appreciation I have worked damn hard, so damn hard, to cultivate and recover. My body has carried me through my whole life; I have fought and danced and laughed and slept and smiled and cried heaving sobs and seen amazing and beautiful things and screamed for joy and for sorrow and my body has been there for all of it — indeed, without my body I would have none of those stories to tell.‖112 III.C. The Right to be Fat I have thus far presented arguments for why human experience of body size is imbued with meanings beyond what the medical/functional/scientific paradigms can see and explain—meanings from domains such as emotions, culture, identity, and personhood. I contend that this understanding of body size in the life of legal subjects must leads to the realization that contemporary law should add to the map of legally recognized basic rights the right to be of any body size, including the right to be fat. Telling a subject of law that he or she should lose weight in order to gain access to basic goods (equal opportunity, dignity, merit-based accreditation in education, lack of ―fat premium‖ in airplane tickets or health insurance quotes) is no less intrusive and oppressive than telling a legal subject what to think or what to believe. Limiting the spread of the body is, from the perspective of autonomy and liberty, as severe as limiting the spread of speech. These are indeed two radically different ways of infringing upon human freedom, but there are some aspects in which they are very similar. Democratic legal systems recognize that speech is one of those magical, idiosyncratic activities that sometimes emerge magically, without a well reasoned premeditation. Thus one does not need to justify the usefulness or truthfulness of their speech before one speaks it. The fragile interplay between speech and thought is such that speech is left alone so as to not limit thought, and allow it to produce the most bizarre, nonsensical, and even damaging speech. In the end, says contemporary constitutional law in the U.S., for example, individual freedom to think and speak is more important than the potential damage of speech. 111 Mandy Katz “Tossing Out the Diets and Embracing the Fat” New York Times, 7.15.2009 nnn was quoted before. Cross reference. 112 Lesley “Dear World: These are all the reasons why I will not be having a weight-loss surgery” 9.28.2010 Fatshionista <http://www.fatshionista.com/cms/index.php?option=com_mojo&Itemid=69&p=560#more-560>. Similarly, as I have shown above, body weight is related to our most intimate and inexplicable inner worlds (and even if the weight-related elements in our inner worlds can be explained, we should not be required to account for them113). Bodily weight has to do with the emotional value of food, with the communal and cultural aspects of eating, with race, gender, and class situatedness, with one‘s self positioning on the spectrum of conventional beauty and body size norms, and more. Limiting body weight is analogous to limiting speech in its potential intrusiveness: it invites society and government to enter areas in the life of individuals that no liberal political philosophy would view as ones that are legitimately accessible to others. Denying a job applicant the job because he or she are too fat or removing children from their parents‘ custody due to the child‘s body size—are in fact not just humiliating messages to fat individuals (and their guardians), but actual requirements that they change not their BMI, but their psychological makeup, their idiosyncratic internal dialogue, their understanding of themselves and of others—core aspects of their human existence. Weight cannot be assessed merely through its (alleged) social cost, but respected as a domain of self that is as intimate to individual privacy and autonomy as faith, conscience, thought, or speech. Weight should be a priori, deontologically released of the socio-legal gaze. This, then, is the rationale for the recognition of the right to be fat. The right to be fat is the right to be free of governmental and societal intervention regarding one‘s weight, either by direct treatment or indirect impact. It also means being equally entitled to social goods114 regardless of physical weight. Like any other right, the right to be fat is not absolute, and might at times be withheld for the sake of guaranteeing other rights, or for balancing it with other interests. However, recognizing body size as a basic right entails that weighing it against other rights and interests (e.g. freedom of contract and property rights of employers or insurers, or utility and competitiveness of air carriers), should be done, with care similar to that awarded to balancing traditionally recognized rights, such as freedom of speech, religious freedom, or privacy. I provide illustrations to such balancing in the next Section. One important clarification before proceeding: Releasing bodily weight from law and society‘s regulative gaze does not mean that society has no room for policies that educate and encourage people – all people – to live a more healthy life, richer in physical activity and with nourishing rather than inferior and impoverished foods. But such policies should be introduced without using weight as a proxy for singling out their audience. Not only do isolating fat people as the target of such programs counter-productive for the fat people themselves, as its humiliating and stigmatizing effects would likely block any healthy connection with the body and would lead to even greater alienation from the body and its needs, but also, as I explained above,115 non-fat people would significantly benefit from such health-education and incentives as well. In my suggested theoretical framework, targeting fat people for a healthy lifestyle campaign (especially—but not exclusively— one that encourages them to lose weight) is in many ways analogous to targeting observant Jews in a campaign to start working in the Sabbath because their practice burdens the economy and employers‘ flexibility, or rid themselves of Kosher 113 C.f. my argument about the advantages of ridding legal subjects from the need to explain their hairstyle or grooming practices: Yofi Tirosh, Adjudicating Appearance: From Identity to Personhood, 19 Yale J. L. & Feminism 49, 83-9, 104-8 (2007). 114 John Rawls‘s enumeration of primary goods provides a helpful list for appreciating what I mean by social goods. See John Rawls, A Theory of Justice 62, (1971) 115 See part xxx supra (thin people have stakes too) dietary restrictions because they are irrational and increase the price of food. The government can, in my mind, legitimately design a program to encourage walking 10,000 steps a day (preferably while also creating conditions for such walks, through walking-friendly urban and suburban planning), or encourage buying fresh produce at the farmers‘ market (through subsidizing these produce rather than products such as white bread and the damaging corn syrup that has become ubiquitous in processed foods)—but it should aim such programs at everyone, not at food-stamps receivers or at fat people alone. It could even legitimately design a lifestyle program targeting the diabetic or the high blood pressure patients, as long as it does not use weight as a proxy for tracing the recipients of such programs. Returning to the analogy to speech—we know that while governments cannot limit speech, they can and should legitimately encourage people to acquire skills for better speech (through mandating school education, or through subsidizing continuing education, theater, arts, and debating clubs). Again, I support bodily awareness and respect for the body for all individuals. I am against, however, trying to promote such respect by disrespectful policies aimed at nowadays pariah – the fat. III.C. Normative Implications: Some Hard Questions Medical cures are inappropriate when applied to social ills. 116 What would a right to be fat look like, then? What is the meaning of this suggested new legal term? In this Section I outline some normative implications of this right. III.C.1 Airplane Tickets and Health Insurance Premium Should air carriers be allowed to charge a double ticket from very fat people who cannot fit in to one airplane sit, or at least cannot fit in while leaving enough free space to the passengers sitting next to them? And should health insurance providers be permitted to refuse insuring very fat individuals, or charge more from who they categorize as overweight? How would the right to be fat help determine these questions? My reply to these questions is twofold. First, the factual assumptions that underlie and justify these price distinctions should be carefully examined, for there are reasons to assume that they are imbued with inefficient blind-spots that raise concerns that these distinctions are not based on efficiency considerations but on fat bias. Both air carriers and health insurers base their price distinction on the assumption that fat people would be most costly to them than other groups, but these assumptions might be based on cognitive biases against fat people, and reflect inefficient market errors. Consider other costumers‘ characteristics that airlines and insurers should target from an efficiency perspective, but refrain from doing so. Life insurance providers ask applicants about their weight in order to determine their admissibility and their premium, but as far as I could tell, they do not ask whether the insurance applicant has a high stress job. Stress has been known to have adverse affects on health and longevity no less severe than what is often argued about weight, but—to phrase it cynically—it is much harder for a company to be judgmental and stigmatic toward stock exchange brokers or corporate executives. Perhaps it is cognitively harder to identify that esteemed and high-earning members of society are casting a burden on the insurer‘s pocket, and it is also harder in terms of marketing and company image to charge higher premiums and label clients as costly and inferior from a strong professional segment of society. Fat people, on the other hand, internalize their inferiority and blame, thus it is easier for their high premium to pass muster.117 Fat people are also likely to be generally poorer than people in professional high stress jobs,118 thus it is probably easier to give up on them as costumers. Air passengers may legitimately dread being seated next to the very fat person waiting at the gate, but there are other passengers that might similarly compromise their flight comfort, although their characteristics are not 116 Wann, Introduction, in: The Fat Studies Reader, xiv. 117 There are myriad illustrations of such cognitive biases in business and in public mores. Xxx cite Paul Fussell about work accidents. 118 For the correlation between weight and socio-economic status see id. at nnn. readily visible to the naked eye. For example, the passenger with bad bodily odor or breath, or the passenger who sits at the window and keeps waking you up in order to go to the bathroom due to a small bladder can be as detrimental to a smooth flight as the fat passenger. Indeed, the costs of targeting such passengers might be too high for the airlines (both in designing an efficient test for pre-recognizing them, and in terms of infringement of their dignity), but the dignity infringement (or simply, the humiliation) also exists in the case of the fat person who is asked to buy a double ticket.119 Indeed, the smelly or jumpy costumer does not cost as much to the airline—while he or she may spoil the flight for passengers sitting adjacently, they do not take more physical space and prompt more gas consumption of the heavier aircraft as the fat passengers. However, there are other groups that the airlines do not single out for higher price, although they might cast a similar cost burden on the airline. Passengers in wheel chairs who take more space and add weight to the airplane, or older passengers who need to be transported and escorted from the check-in to the gate are not required to cover their extra cost. This might be due not only to company image interests, but also to legal bans on disability and age discrimination (although it is doubtful to what extent age discrimination is forbidden by private service providers, as opposed to employers, who are considered holders of a good that has strong public aspects). But what about religious costumers? On flights departing from or arriving to Israel it is common that groups of observant passengers group up at the rear of the airplane for prayer times. It is often highly interfering for both flight crew and other passengers wishing to use the bathroom or to have peace and quiet. And still, religious needs (at least the Jewish religion in the case of flights to and from Israel) do not serve as a basis of extra ―prayer charge‖ in flight tickets. Religious practices are, in our current sensibility, intimate enough to the self as to justify refraining from price distinction. I contend that bodily weight is too. If insurers and airlines are not targeting many other groups that jeopardize their profitability, it is not only a case of inefficient market distortion, but also a testament to the fatophobic (conscious or unconscious) bias that prompted such price distinctions. If this is the case, then once contemporary legal systems have recognized the importance of being left alone regarding body size—once we recognized the right to be fat, there is room to conclude that theses price distinction are in fact illegitimate price discrimination towards a stigmatized group. To sum up this point, such price differentiation should be considered illegitimate because they are based on bias rather than on straightforward affiance considerations (we know that by looking at other costly groups that are not subjected to the same price modification), and because the personal characteristics that prompts this price distinction is an aspect of personhood that should be respected by society, including contractual parties.120 An analogy from another area of discrimination would illustrate my point. Ivy League universities introduced personal statements as part of the requirements in college applications when it was no longer legal to apply quotes for Jewish students.121 Students‘ description of their biography and home environment was a way to 119 For a helpful review of biased inefficient price discrimination based on race and ethnicity see John Yinger, “Evidence on Discrimination in Consumer Markets” 12 J. Econ. Perspectives 23 (1998). See also John Donohue, “Antidiscrimination Law” in: Handbook of Law and Economics 1387 (A. Mitchell Polinsky & Steven Shavell eds., vol. 2, 2007) (assessing the extent to which discrimination is based on bias from an experimental economic perspective). 120 Evidence from other stigmatized groups, such as racial minorities, reinforce the concern that insurers’ decisions are not solely based on efficiency considerations. See, e.g., Ana E. Balsa & Thomas G. McGuire “Statistical Discrimination in Health Care” 20 J. Health & Econ. 881 (2001). 121 See Malcolm Gladwell, “Getting In: The Social Logic of Ivy League Admission” The New Yorker, Oct. 10, 2005. distinguish the well-off Protestant applicants from Jews and other stigmatized groups. Personal statements are not only a means to trace Jews, however. There are other, rational and instrumental benefits in them, such as enabling the schools to judge students‘ writing skills, social involvement and more. But readers would agree, I am sure, that if targeting Jews was the primary goal of the personal statement component, then the legitimacy of this application component is weak and highly questionable. Second, the ways in which fat bodies are considered a costly burden is often a result of lack of imaginative and more inclusive social vision, and an expression of the ways in which social and physical design is based on some problematic ideal notion of a ―normal body.‖ The theory and doctrinal directions emanating from the field of disability legal studies (DLS) have illuminating potential for the present discussion.122 DLS tell us that public buildings, restaurants, and workplaces are inaccessible not as natural fact of life, but due to ablelist assumptions about average or normal bodies.123 A ramp instead of a staircase could easily render a venue accessible to more people. But DLS delve deeper into areas that require even more imagination and accommodation effort, such as employers using text-based communication for the hearing impaired, or schools changing the pace and methods of studying and testing to cater for those with problems in concentration or in reading and writing. Realizing that there is nothing natural or immanent in the way buildings or study programs are designed prompts new questions about the way fat bodies are spatially and symbolically positioned as abnormal and unfitting. Just as a ramp can unmark the person on a wheel chair, so might a different design of the airplane rid the fat from the need to pay for a double ticket. What if rather than the uniform seat size in the economy class of the plane, there would be rows with different seat sizes? Or, even better, what if seats width was changeable by horizontally shifting the hand rests? This would not only be an inclusive adjustment to cater for the fat, but it would also represent a more accurate and efficient pricing system: Today, thin or short people enjoy extra hands and leg space without paying for it. They do not actually need it, but the uniform design of the airplane around a model of the normal body leads to this free bonus. Once we start looking at thin people in airplanes (and cancel our treatment of their bodies as unremarkable and natural), different sets of arguments open up. Let me just mention some directions without determining which one should be applied. The price of redesigning adjustable seats might still be smaller than the earnings from being able to provide to each passenger a seat fit to their size and save the space that is currently wasted on thin and short people. Airlines should leave the seats fixed as they are, but just as they charge more from fat people and from people who are willing to pay for extra leg or arm space, they should charge more from thin people who are today free- 122 Here Fatness should not be legally protected under the category of disability law, because it is not a disability. It is not that being considered disabled is a horrible thing, but rather that since my argument is consciously based not on the immutability and genetic determinism of bodily weight, the analogy to disability might divert it to an entirely different political vein. Note also that some weight-based discrimination cases are litigated under than Americans with Disabilities Act. Yyy. 123 See, generally, Arlene S. Kanter ―The Globalization of Disability Rights Law‖ 30 Syracuse J. Int‘l L. & Commerce 241 (2003); Sagit Mor ―Between Hope and Evil: Reframing Disability Allowance,‖ available at http://works.bepress.com/sagit_mor/. riders that enjoy the extra seat space without paying (yes, I know that this is an abomination. Thin people should not pay after they have been so well behaved in monitoring their weight. I also realize the efficiency and operative ease in keeping seat size fixed and not asking questions about passengers size. I still make this point in order to provoke our imagination about alternative pricing logics). Conversely, airlines should leave the seats fixed as they are, but charge less from thin people, because they contribute to lower aircraft gas consumption and they improve the flight quality of fellow passengers sitting adjacently (similar price adjustment should be considered for language: passengers pay extra for heavy weight, but they generally do not benefit from traveling light). Like the previous suggestion, this one too prompts a pricing system that is not based on a model notion of a normal body. I am not suggesting that price differentiation based on body size would never be legitimate. I am arguing that once the right to be of any body size, including a fat one, is recognized as part of personhood and as a matter that concerns privacy, autonomy, dignity and liberty—then price distinction schemes would need to be much more carefully assessed than they are now. Factual assumptions about the efficiency of fat premium would need to be scrutinized in light of these personhood-based considerations; alternative pricing schemes would need to be seriously and thoroughly considered due to the effect of price distinction on creating false notions of a normal body; and at times the basic liberties lying at the basis of the right to be fat would override efficiency considerations just as often happens in other instances where basic liberties cost money.124 III.C.2 Employment Discrimination It is clear that fat people are subjected to adverse treatment and lack of equal opportunity in the workplace. Still, whether a category of bodily weight, appearance, or other phrasings that capture fat discrimination should enter Title VII and similar employment discrimination rules is not a simple question, and it merits a separate article. Here I will briefly mention some key arguments for and against such antidiscrimination legislation. Arguments in Support of Banning Weight-Based Employment Discrimination: First, there is consistent empirical evidence suggesting that fat people pay in opportunities and income because of their weight. Fat people are often judged not based on their merits but on fatfobic stereotypes. This is not only unjust, but also inefficient for employers, as they might miss otherwise qualified employees.125 Second, it is legitimate to interfere in the contractual freedom of employers in this context, because weight is 124 See Daphne Barak Erez & Aeyal Gross (eds.) Exploring Social Rights 5-6 (2007) (noting that both traditional civil liberties and newer social rights often cost money). See also: Stephen Holmes & Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (2000). 125 Questions of merit-based hiring and promotion are always complicated, and the area of body size is no exception. Should employers be allowed to consider damage to company image caused by a service giver that is ―unaesthetic,‖ for example? Should they be permitted to consider the health insurance costs of fat employees? These questions should be determined with the tools of employment discrimination doctrine. What is clear, however, is that many assumptions about skills, professionalism, and performance of fat people are shaped by bias rather than data. part of personhood, and as such it is similar to religious freedom, with which, in general, 126 employers cannot interfere. Arguments against a Legal Ban on Weight-Based Employment Discrimination: a. The most disconcerting potential of introducing weight to the list of suspect categories in employment antidiscrimination clauses is that the gaze of the law, albeit with reformist and liberating intentions, might produce even more oppressive outcomes than the harm of discrimination itself. The damage is in the normalizing and disciplining powers of the legal gaze on the fat body. In reading those weight discrimination cases, we see a discursive convention, a habit of speech, in which the opinion specifies that: ―at the time her employment was terminated, she was fifty-five years old, 5 '7" tall and weighed about 240 pounds and ..., previously, she had weighed as much as 311 pounds.‖127 Or we read that the plaintiff did not present evidence to show that his weight is a result of a genetic or metabolic condition. Much have been written about the normalizing effects of subjecting sex, race, or sexuality to the discourse of antidiscrimination law. I suspect that the damages in the case of weight might be even more severe, since being a woman or a person of color are statuses that do not require that intrusive and clinical an inquiry about the reasons and manifestations of their falling to the protected category, and do not burden the plaintiffs with an internalized blame about their ―condition‖ as women or as non-whites. If protecting fat people from discrimination would entail subjecting plaintiff to a legal enquiry about their weight, metabolic function, genetic makeup and lifestyle, then perhaps the legal arena is not the appropriate one for protecting the fat against discrimination. Perhaps dignity- or liberty-based claims of fat people in the workplace might rid the litigation from the need to subject plaintiffs to explain their situation ad nauseam.128 b. Some jurisdictions, such as the State of Michigan, Washington D.C., or Santa Cruze, already introduced appearance or weight as forbidden grounds for discrimination. In the decade since introducing those laws, we find surprisingly little litigation: plaintiffs do not file claims about their weight-based discrimination. One likely reason for this lack of using law to mobilize fat rights is that fat plaintiffs are either hesitant to expose themselves publically as fat (if they file a weight discrimination claim, an online search of their name would 126 The extent to which employers are required to ignore religious practices and faith is legally fluid and contentious. While most democratic legal systems agree, for example, that churches are allowed to exclude applicants from a different denomination when they hire a priest, it is more complicated when it comes to administrative jobs within the church organization. Similarly, while employers cannot ask employees to convert, they can often legitimately require that they remove their head cover. See yyy. 127 Lamoria v. Health Care & Retirement Corp., 230 Mich. App. 801 (1998). 128 I developed this argument in the context of appearance claims (such as dress and hairstyle claims) elsewhere: Yofi Tirosh, Adjudicating Appearance. yyy eternally expose this fact), or they are unable to admit to themselves that they are going to remain fat (that is, they internalize the future-grounded understanding of fat identity, as one that is only pending metamorphosis). The legal venue, then, has thus far not proven as effective or significant in preventing weight-based discrimination. III.C.3 Smoking, Skydiving, and Other Dangerous and Idiosyncratic Behaviors My argument has normative implications on other behaviors that can be categorized as controllable and unhealthy or risky, such as smoking, tobacco or engaging in extreme sports. I believe the account provided here about the intimate and non-generalizable nature of physical practices can contribute to our understanding of smoking or bungee jumping. Smokers are attached to the sense of peace, pause, and release that cigarette provides. They often feel it is to be cherished and that there are no equivalent replacements to the moments and senses that smoking provides for them. Indeed, one of the implications of my argument is that we should begin to develop a set of questions in order to determine which activity or lifestyle merit legal recognition and protection. These questions will involve the extent to which a certain bodily habit is close to the core of our person, and the extent to which such bodily aspects of experience defines identity both ―from insider out‖ (by the person) and ―from outside in‖ (by society‘s gaze). I mentioned above that being fat today entails a persona; an entire set of characteristics that seemingly emanate from body size, and reflect substantial qualities in the fat person (such as lack of self control, laziness, but also perhaps sense of humor and ability to enjoy life). We are not there with smoking or with extreme sports. Indeed smokers in the USA today are viewed as lacking self control, risking themselves and others, and casting a burden on the public budge with their expected illnesses. However, these attributes do not amount to a sense that smokers are primarily defined by their smoking: there are exceptions, but we usually say ―his profession is x, he is age y, and he is a smoker.‖ With fat people, their size comes earlier in our perceiving and talking about them. III.C.4. A Note about Anorexia Nervosa129 Anorexia Nervosa is on the other extreme of the weight spectrum, and any vindication of the right to be left alone regarding one‘s body size must give regard to the implications of the argument on anorexics. The cases of the fat and the anorexic are similar in significant ways, and different in still other ways. The two cases are similar in that socio-cultural messages and conditions play central role in leading to the condition and in understanding it. Both extreme forms of divergence from the points on the weight spectrum that are considered normative are, after all, located in that idiosyncratic and intimate domain of human existence. As I have been arguing 129 I am thankful to Leora Bilsky and Orna Sasson Levi for encouraging me to develop this point. throughout, government and social actors should be extremely careful in intervening in this domain. Competing explanatory frameworks are at work with regard to the two body types. Both in anorexia nervosa and in fat there are heated debates about nature v. nurture, or between biologically determined explanations of the body size and cultural and environmental factors.130 Similarly, in both cases ―treatment of the condition‖ (I used parenthesis because I do not think fatness generally merits treatment) is still ineffective and challenging to medicine. Apart from immediate (sometimes forced) insertion of calories to starving anorectics, modern medicine and therapeutic institutions have, to my understanding, a scant record of success in offering effective and long term cure to patients. As with people who are socially viewed as too fat, women who are considered too thin are subjected to concerned comments from friends, teachers, family members, and strangers regarding their body size. In other words, both body types are exposed to judgmental and reprimanding gazes. But fatness and pathological thinness are also significantly different. The threats to life and health (reproductive function, bone mass, blood makeup, immunity system and more) posed by anorexia nervosa are much less contestable and much more immediate than the threats to life and health posed by heavy weight.131 Even those considered ―morbidly obese‖ usually live for many more years and in much more productive and regular working and personal lives than anorexic patients in advanced stages of the illness. This difference suggests that it might be more legitimate to intervene in the short term autonomy of the anorexic patient than in that of the fat.132 Both the fat and the extremely thin can be viewed as prevalent and normative normal cultural expectations one additional notch into the pathological and risky (anorexic individuals–especially anorexic women—abide by dietary norms that every Western woman is exposed to from an early age: they just do it too well; and fat people practice the capitalist consumer imperative to surrender to desires and consume on a whim, and to respect and invest in pleasure). And still, hordes of girls surf in ―pro-Anna‖ websites, teaching them how to become an excellent anorectic, and not in ―pro hippopotamus‖ websites.133 My point is that it is that although both fat and very thin are subjected to social gaze and sometimes to formal and informal disciplining of their body size, it is still socially easier to be too thin than it is too be too fat: thin people can find clothes in any store, they are not subjected to price discrimination, and they usually benefit from their thinness in the context of employment opportunities more than fat people—even if they are clinically diagnosed as anorexic. 130 For an excellent mapping of this debate with regards to anorexia and other psychiatric illness see Arthur Kleinman, Rethinking Psychiatry: From Cultural Category to Personal Experience 34-76 (1970); For one account (out of myriad scholarship) on the role of messages about femininity and ideal womanhood in prompting anorexia see Susan Bordo, Unbearable Weight: Feminism, Western Culture and the Body 139-64 (2nd ed., 2004). 131 For the challenges to the linkage between weight and bad health see part I.B.2 supra. 132 Another difference concerns age. Anorexia mostly bursts among teenagers, in an age in which patients are neither legally autonomous nor psychologically ripe to fully appreciate the implications of their condition. With fatness usually people become fatter as they grow older. Even when fat people were already fat in childhood, normally their childhood fat does not kill them (at least not nearly as anorexia kills young women), and so they live to be adults who can appreciate the implications of their body size more than teenagers can. I thank Tal Kohavi for pointing out this difference. 133 Indeed we have ―fat and beautiful‖ websites and forums, but I suspect their scope is dwarfed compared to the demand and supply of knowledge about anorexia how-to. Additionally, normally people arrive at the ―fat is beautiful‖ websites once they already feel fat, not in order to become fat, as opposed to pro-Anna websites, who draw web surfers who want to become thinner. Part III: Welfarist Arguments Part II of this article developed the idea that a right to be fat should be justified in deontological terms. In the following brief discussion I will argue that if the discussion is to be conducted in utilitarian terms, then the utility calculus must include the significant benefits individuals draw from operating in conditions of autonomy, privacy, and self respect. Put differently, any argument from utility that supports casting heavier burdens on fat people as a way to compensate for the externalities their weight passes to society (e.g. by charging a higher health insurance premium, or by allowing weight-based discrimination), must compare the thus-far very low success rates of such policies vis-à-vis the cost of stigma, guilt, low self esteem and disempowerment that would be associated to such burdens. Additionally, even if one accepts that the worthy long term social goal is to reduce the population‘s bodily weight (an assumption that I am ambivalent about, but that I am willing to accept for the sake of the argument), then casting stigma on fat by legitimizing the extra burdens and costs associated with it would arguably hamper this long term goal. Repeatedly conveying to individuals that their bodies are bad and decrease their value as members of society would probably lead to a deepening of the disconnect between mind and body: it would alienate them from their bodily existence, thereby making it less likely that they might operate meaningfully and positively in the sphere of their bodies. Growing evidence indicates that abandoning the aspiration to lose weight while living actively at whatever size one is actually contributes to health and longevity.134 There are good reasons from utility, then, to prevent employers from discriminating fat people, from banning double charging fat people on airfare, etc. II.A. Thin People Have Stakes in the Right to be Fat As Well ―In January, at the first formal of the year, the tremendous will- power of Wellington [College]‘s female students is revealed. Unfortunately for the young women, this demonstration of pure will is accredited to ‗femininity‘ — that most passive of virtues — and, as a result, does not contribute to their Grade Point Average. It is unfair. Why are there no awards for the girls who starves herself through the Christmas Period — refusing all sweetmeats, roasts and liqueurs offered to her - so that she might appear at the January formal in a backless dress and toeless shows, although the temperature is near to freezing and the snow is heavy upon the ground?‖ Zadie Smith, On Beauty (Penguin Books 2005) 341. Recognizing that individuals have a right to be of any body size is not only an interest of fat people. Those 134 Linda Bacon et al. “Size Acceptance and Intuitive Eating Improves Health for Obese, Female, Chronic Dieters” 105 J. Am. Dietetic Ass. 929 (2005) (comparing women who underwent a diet program with women who were trained in Health at Every Size program, and finding that the latter showed better results in health measures, physical activity, and self esteem); Mandy Katz “Tossing Out the Diets and Embracing the Fat” New York Times, 7.15.2009 (quoting Steven Blair, Professor of exercise science, epidemiology and biostatistics at the University of South Carolina, indicating that his research shows that “obese individuals who are fit have a death rate one half that of normal-weight people who are not fit.”). considered or considering themselves outside of the fatness realm would benefit from such a right as well. First, the boundaries demarcating fat identity are much more fragile and blurred than is usually assumed. With the prevalence of negative stances toward fatness, many people whose weight is considered normal or even under- weight according to medical measures still view themselves as fat.135 The increasing rates of anorexia among men indicate that such unease is no longer a women‘s issue, but concerns both sexes.136 The stigma associated with fatness renders those who do not presently feel fat ―to live in fear of getting fat.‖137 The expressive work of anchoring a right to be fat, then, would send a message not only to fat people, but to many others who are in a constant dialogue with their own identity vis-à-vis fatness. Second, the inflated focus on obesity in medical research and public policy leads to neglect of positive policy changes that should have benefited the entire population. A study on American teenagers found that if they considered themselves not the right weight (too thin or too fat – regardless of their actual BMI), they were significantly more likely to attempt suicide.138 The focus on good nutrition of obesity research leads to neglecting good nutrition as a concern of the entire population. In Marylin Wann‘s poignant words: ―Why should good nutrition not concern thin people? Why advance a food-policy agenda on the backs of fat people?‖139 To illustrate the last point, consider a scientific article recently announced that fat people contribute more to global warming: since they eat more, transporting their food is polluting.140 Additionally, fat people walk less, using more vehicles and gas. Researchers estimated that each fat person is responsible for about one ton of carbon dioxide emissions a year more on average than each thin person. "When it comes to food consumption, moving about in a heavy body is like driving around in a gas guzzler,‖ write the researchers. 141 Setting aside the scientific solidity of these finding (who, for example, are those ―normal persons‖ who serve as the comparison group? Do they include thin flying executives who roam the glob in jets, or the gamers, bloggers and other internet heavy users whose online activity requires farms of computer servers that are far from green? 142), it 135 See, e.g., David M. Garner, The 1997 Body Image Survey Results, PSYCHOLOGY TODAY, Feb. 1997, at 30, available at http://www.psychologytoday.com/articles/199702/survey-says-body-image-poll-results (Noting that 89% of the 3,452 female respondents to the survey wanted to lose weight, and that 56% of them were dissatisfied with their overall appearance). 136 SUSAN BORDO, THE MALE BODY: A NEW LOOK AT MEN IN PUBLIC AND IN PRIVATE 218 (2000); see also National Association of Anorexia Nervosa and Associated Disorders, http://www.anad.org/get-information/about-eating- disorders/ (last visited Oct. 9, 2010) (noting that about 1 million men in the US suffer nowadays from eating disorders). 137 Marilyn Wann, Forward to SONDRA SOLOVAY & MARILYN WANN, The Fat Studies Reader, at xi, xv (2009). 138 Danice K. Eaton, Richard Lowry, Nancy D. Brener, Deborah A. Galuska & Alex E. Crosby, Associations of Body Mass Index and Perceived Weight with Suicide Ideation and Suicide Attempts Among US High School Students, 159 ARCH PEDIATR ADOLESC MED. 513-519 (2005). 139 WANN, supra note 42, at xvii. 140 Phil Edwards & Ian Roberts, Population adiposity and climate change, 38 INT'L J. EPIDEMIOL. 1137-40 (2009); see also Michael Kahn, Obesity contributes to global warming: study, REUTERS, May 15, 2008, http://www.reuters.com/article/idUSL1572011320080515?rpc=21. 141 London School of Hygiene & Tropical Medicine, Keeping slim is good for the planet, say scientists, Apr. 20, 2009, http://www.lshtm.ac.uk/news/2009/keepingslim.html. 142 John Markoff & Saul Hansell, Hiding in Plain Sight, Google Seeks More Power, N.Y. TIMES, June 14, 2006, available at http://www.nytimes.com/2006/06/14/technology/14search.html?_r=2. would undoubtedly be much more productive to invest research in discouraging everyone, including thin people, to consume less beef (which leaves high rates of carbon footprint143), decrease food transportation through measures such as focusing on local foods, and develop less polluting vehicles. Research questions such as ―do fat people contribute more to global warming?‖ are problematic in two ways, then: First, they are scientifically weak in that they rely on a distinction that is indeed culturally rooted (fat/thin), but very weakly relevant to the issue at hand (understanding ways to prevent global warming through eating and living styles). And second, such research questions are problematic because they divert the solutions to pollution and global warming from society-wide, structural measures that are likely to be much more effective than singling out an already stigmatized group and saying ―we will continue partying with flying, eating beef, surfing the web, and other various polluting, while you leave this party: stop eating so much and start walking.‖ One cannot avoid the conclusion that this research epitomizes armchair science that looks for the keys under the street light. Another study, published in a prestigious scientific journal, found that fat is contagious: ―Obesity can spread from person to person,‖ reported the New York Times, ―much like a virus.‖144 If you have fat family or friends, you are much more likely to gain weight as well. One wonders, however, what could possibly be the policy and applicable conclusions of such a study. In a society in which, according to public health accounts, 68% percent of the population is overweight or obese,145 it is very hard not to associate with fat people (I am not even discussing the subtextual call of this study to further outcast and stigmatize the fat). Additionally, we also know that fat is not equally dispersed among social groups in America. It is an issue primarily for some racial groups (Native American, Hispanics, and African Americans) and for the poor.146 Does this study suggest deepening the racial informal social segregation and the class division in order to effectively avoid the horrible fat epidemic? 147 To understand the effect of such articles on fat people, consider a hypothetical article which poses the analogical question, only this time about race. Would the New York Times headlines report the next days: Race is contagious: Study finds that having a black friend leads to having more non White friends‖? Surely we would urge the researcher to worry about ways to prevent racism rather than report, seemingly neutrally, about the worrying spread of cross-racial associations. Focusing on the damage that fat individuals and groups cause to society and to themselves leads to deepen the insecurity and anxiety about having the right body size among people with ―normal‖ weight, and diverts 143 See, e.g., Akifumi Ogino, Hideki Orito, Kazuhiro Shimada, Hiroyuki Hirooka, Evaluating environmental impacts of the Japanese beef cow–calf system by the life cycle assessment method, 78 ANIMAL SCIENCE J. 424-432 (2007). 144 Nicholas A. Christakis & James H. Fowler, The Spread of Obesity in a Large Social Network over 32 Years, 357 N. ENGL. J. MED. 370-379 (2007); Gina Kolata, Find Yourself Packing It On? Blame Friends, N.Y. TIMES, July 26, 2007, available at http://www.nytimes.com/2007/07/26/health/26fat.html. 145 Katherine M. Flegal, Margaret D. Carroll, Cynthia L. Ogden & Lester R. Curtin, Prevalence and Trends in Obesity Among US Adults, 1999–2008, 303 JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION 235, 238 (2010); see also Roland Sturm, Increases in morbid obesity in the USA: 2000–2005, 121 PUBLIC HEALTH 492, 494 (2007) (finding 3.07 percent of American adults - or 6.8 million people - were morbidly obese in 2005). 146 find citation. Yofi yyy 147 That fat is concentrated among distinct groups also significantly weakens the logic and findings of this study: If race is a major factor in gaining weight, then it is likely that the reasons for one's weight gain is not that most of one's friends are black, but that one is black oneself. My critique receives backup from the study's finding that one does not need to be near their relative or good friend – they could live hundreds of miles apart, and still behave similarly, weight-wise (Christakis & Fowler, supra note 48, at 376). An account of the causal link is required to render this study valuable. potentially important resources for policy reforms from structural and population-wide measures to casting the blame on the fat and asking them to self-segregate. IV. Conclusion T h e idea that our contemporary map of basic right should open-up as to include rights related to bodily practices in general and to body size in particular is far from trivial or simple. The implications of a legal recognition of a right to be fat are challenging, and they will unfold and reveal themselves if and when such a right is recognized by both cultural discourse and law. I hope I succeeded in illustrating the extent to which the prevailing discourse about weight is reductive in its impoverished, medical and instrumentalist vocabulary. But even if my suggested framework is not to be applied (and I suspect it will not be easily received), I will be satisfied with a discourse about fatness that will appreciate its contingencies and instabilities, its positive meanings, and the role it plays in our culture as a demonized other.
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