Law, Weight, Language and Race T-shirt Sizing

Today I gave a short presentation on weight discrimination in EU Law at the 6th Weight Stigma Conference held at Leeds Beckett University. Some times talking to mostly non-lawyers about law is fabulous, sometimes it’s not and today I found the room really hard to read. It was part of a long session following lunch so maybe people were experiencing their afternoon slump (I was) or maybe it had something to do with the presentation before mine. It was on UK (let’s ignore the fact that there’s no such thing as UK law really) anti-discrimination law based on weight. It was how I would imagine I would have been taught employment law if I had chosen to study it. It was so doctrinal/black letter in its approach that even I was bored and I get excited about anti-discrimination law! It was all definitions and them (the fat people who might want to claim) and us (the presumably not fat lawyers). It was mildly patronising – fat people should not fear discrimination and the law does protect in some circumstances. I’m not sure many who are fat would agree with that. But anyway, the atmosphere in the room was odd when I went up to give my presentation.

I introduced myself as a feminist EU Lawyer and sometimes more, sometimes less overweight marathon runner. There were some laughs. Phew. More laughs when I mentioned my drawer full of race t-shirts which don’t fit and which might just cover half a boob. Then down to the serious stuff – law is not going to solve that sort of discrimination. So very briefly my argument was:

There is no prohibition on weight discrimination in EU Law. Directive 2000/78 covers discrimination on a number of protected characteristics in the employment context. Disability is one of those protected characteristics. To gain protection (or more accurately redress) from the law, weight discrimination has to be brought within definitions of disability discrimination. English Law is firmly rooted in the medical model of disability – the problem is the impairment – whereas EU law offers some glimpse of hope because it includes the social model as outlined in the United Nations Convention on the Rights of Persons with Disability  – the problem is social barriers. That glimmer of hope may have been extinguished with the CJEU’s decision in Kaltoft though which, in an obesity case, reaffirms the social model and then reverts back to a medical model in the key part of the decision. So in short – law is complex and tricky in this area.

I also think theoretically linking weight discrimination with disability discrimination is problematic. Of course some people with very high or very low weight can bring themselves within the definition of disability but many cannot. So lets think about my experience (in the absence of detailed research on this as yet, I am drawing on what I know from my experience!). Even if law applied (it doesn’t) it wouldn’t solve my problem of short half marathon and marathon cut off times and utterly ridiculous race shirt sizing (I have an XXL t-shirt which I literally cannot get over my shoulders). So the cut off time would indirectly discriminate against heavier runners – we are more likely to be slow, the lack of t-shirts that fit more than one boob is direct discrimination but there is no protected characteristic – I’m nowhere near the definition of disability in this context – not even on a fairly expansive definition of the social model. Maybe using the example of running is flippant, I’m not sure. I just know that exercise and sport are the things that have caused me personally the most anxiety in relation to my own weight. It’s where I know I experience discrimination and bias all the time.

So I don’t think the legal framework as it stands is helpful. I am also not sure that adding weight as a protective characteristic is all that helpful. Let’s start with the symbolic power of law – let’s not underestimate that. It is certainly important because it’s a clear statement that certain types of behaviours and actions are wrong. That can be really important for individuals. Law can be useful to help educate and raise awareness. Yes, I agree with all of that BUT let’s be really careful here. Law always always always has unintended consequences and often they can be incredibly harmful – we need to think about whether adding weight as a characteristic would cause a backlash, would it drive discrimination ‘underground’, make it less blatant and obvious and thus harder to tackle in other ways?

How would we define weight discrimination? How do we define weight? Can discrimination here be based on too low, too high or too average? How would this work in practice? Where would we draw the lines? What measure would we use – surely not BMI? Does it depend on context? I don’t know where to start with this! Every possible way I can think of can potentially have totally absurd consequences.

Law also has some inherent problems. It relies on discrimination happening. Law cannot prevent discrimination and we know from other protected grounds that the possibility of being taken to court is not, in practice, deterring people from discriminating at any significant rate. Law reduces us all to single characteristics. We can be fat, thin, white, black, female, male, gay, straight…. we cannot be a combination of those in law. It can’t actually cope with people. Law does not understand intersectionality and weight discrimination rarely, if ever, exists in isolation. And law cannot tackle stigma. Equal marriage hasn’t stopped homophobia – anti weight discrimination law won’t stop weight stigma or bias – we need other solutions.

There are practical problems with law too – bringing a case is horrendous. I could not, in good conscience, advise anyone to take a discrimination claim to court. It’s financially and emotionally draining – as in completely – until you have nothing left. It’s a significant undertaking and our legal system favours those with money and social capital, if you don’t have both along with an unlimited reserve of resilience, just don’t do it! Oh and of course, don’t even think about trying if you do not have absolute concrete proof. And that is going to be harder and harder to get. If weight becomes a protected characteristics  then discrimination may become more subtle, less obvious, more like the discrimination based on race, gender or sexual orientation some of us have clearly experienced but would never be able to prove. We’d just know, everyone would just know but the law demands proof – even of the blatantly obvious.

So I think what I am saying is that law is part of the theoretical and symbolic answer but not really part of the practical solution.

In my presentation I used the language used in much of the literature I read – non-ideal weight. This caused a noticeable reaction in the presentation before mine where it was also used. I actually meant to start with explaining why/how I was using it but I got caught up in my race t-shirt story and forgot. I get how the language is problematic and I meant to say that legal literature appears to use it as a shorthand way to cover very low and very high weight and that it does not denote a value judgment. So just to be absolutely clear – I was using it as a sort of legal category or shorthand with no assigning of value intended at all. I guess though that the legal literature might want to re-think that language use and I will be for my written paper.

Anyway, watch this space – full paper coming in due course….