17 December 2014

Is fat now a disability in the UK?

About 20 years ago I published an academic paper and a book based on some postgraduate research that explored the possibility of thinking of fat as disability.

Other people built their own papers on that work, others ignored it and, over the years, there have been occasional flurries of interest in fat and disability intersections within Fat Studies.

My main argument at the time was that it is useful to think of fat as disability using a social model of disability. This means that it is people's attitudes and social structures that need changing as opposed to people's physical and mental impairments (ie, their embodied difference). The social model offers a useful way of critiquing medicalisation which, for fat people, is becoming increasingly intrusive. It also proposes helpful ways of thinking about charity and pity, and about 'helper's' motivations. The social model of disability is a potentially very powerful means for fat people to gain a social identity, build coalitions, and develop a critical and cultural voice collectively. This has remained an idea with scant application, although things might be about to change.

What has hindered that change is that disableism and ignorance about disability means that people resist identifying with it. There is also a belief that fat shouldn't be thought of as a disability because it is the result of people's bad choices and bad behaviour. Why people are fat is a dead-end thread and derails a discussion of who counts as disabled. Within disability community there are vastly different experiences of impairment, it's a very broad group of people. Similarly, smaller fat people are likely to come up against fewer social barriers relating to fat than fatter fat people, although this depends on other intersections such as gender and race. So claiming fat as disabled is complicated, depends on the social context in which people live, it isn't a one size fits all affair. It's also worth pointing out that fat and disabled are not mutually exclusive categories either. There are disabled people who are fat as well as fat people who already think of themselves as disabled. Disability might also be a transient state or a state that people reach with age.

In July of this year the advocate general of the European Court of Justice gave a ruling on a case about employment discrimination involving a fat person using disability as its basis. This echoes cases in the US, described by Sondra Solovay in her book Tipping The Scales of Justice, and on which anti-discrimination law was established in Michigan and a handful of cities. The court found that people with a Body Mass Index of 40 or more could be considered disabled and could therefore be protected against discrimination. Their findings were not binding, but it was recommended that the case be referred to another court for a decision that could be brought in across the European Union. That decision is due any day now.

There are a few things to consider if the ruling passes that fatter people can be classed as disabled:

The main thing is that it would mean an entitlement to rights. In employment, which is the basis of the ruling, it would mean that we would be entitled to 'reasonable adjustments' that ensure work is accessible to us. Here the responsibility to provide an accessible environment shifts to those providing the environment rather than the expectation that fat people should lose weight to fit in. I'm not sure, but perhaps this could be extended to access in public space, for example seating and transport. I think that within this ruling is the implicit acknowledgement that losing weight is not a viable option. Legally recognising some fat people as disabled would also mean that we could, theoretically, claim cases against discrimination and be eligible for compensation. Given the evidence that fat people routinely experience discrimination, including at work, this would be extremely helpful.

I have some concerns, however. Body Mass Index, on which the ruling would be based, is notoriously flawed and, by using it, the court reinforces the idea that it is a valuable 'scientific' way of measuring fat or classifying fat people. There are likely to be cases that could benefit from the ruling but which would be thrown out because the complainant does not have the correct BMI number. I wonder if the ruling might be used to further medicalise fat people, or use ableism to leverage more problematic medical interventions such as weight loss surgery with the aim of producing allegedly able-bodied citizens (I say alleged because surgical complications produce disabled fat people). It will be interesting to see how classifying fat people as disabled affects commercial weight loss organisations, for example, and their public-private partnerships within the NHS and statutory healthcare provision. Would they have less of a claim on the public purse? I was intrigued by Glenn Hayes, an employment partner at the UK law firm Irwin Mitchell, who told The Guardian earlier this year that 'reasonable adjustments' at work could include: "ensuring that healthy meal options are provided at their staff canteen." This seems to me typical of how obesity discourse is likely to become embedded within the ruling, if it passes, to create increasingly fatphobic and coercive environments where, for example, your food choices at work become even more policed and loaded.

The situation for disabled people in the UK at the moment is particularly dire. The government's commitment to cutting social service funding means that to be disabled is to experience extreme social marginalisation. Rhetoric about assisted suicide for disabled people cannot be divorced from the ideology of austerity. This is the context in which fat people's potential legal recognition as disabled will occur. Cuts in Legal Aid might mean that accessing justice is reserved for the rich. I hope that legal recognition will encourage fat people to feel confident and empowered to claim our basic rights and participate in a community of disabled people who are already fighting hard for their lives. But I also wonder if this will further entrench fat identity in abjection, shame, patronage and pity because we won't just be fat now (with the attendant false promise that we could make ourselves normal is we really wanted to) we will be disabled too and therefore presumably beyond hope.

Whatever the ruling, prepare yourselves for a parade of outraged anti-Europe right-wingers in the media spluttering about political correctness gone mad. Joy.

18 December, edited to add:

The court has made its ruling, but it looks unclear.

The European Union's Court of Justice in Luxembourg ruled that "under particular conditions" fat people can be construed as disabled. The particular conditions are where one's fatness hinders one's participation in common activities, including work compared to other people. It looks as though the court is saying that each case should be judged on its own, it is not proposing that fat people should have protected status.

This is obviously a medical framing of fat and does not draw on a social model of disability. Hence the ruling, as far as I can see, does little to protect against discrimination, and I don't know how people might use it to demand that reasonable adjustments should be made so that spaces are accessible.

Because it is drawing on a medical model, it could be that people who have medical problems or impairments relating to fat could access rights, but even then it is not clear.

It seems quite a weak and wishy-washy ruling, in my opinion, although my legal expertise is minimal. Lawyers talking to the press about the ruling sound more positive and are saying that it's an important step in legally recognising ant-fat discrimination in the workplace.

The case that led to this ruling has not been resolved and will be referred back to the Danish court for a decision on whether or not the plaintiff can be defined as disabled. It will be interesting to see how that plays out and if it will offer a precedent for test cases in the UK and elsewhere.