Revisiting rights across contexts: Fat, health, and antidiscrimination law

• Date: 02 September 2009
• DOI: https://doi.org/10.1108/S1059-4337(2009)0000048008
• Pages: 121-145
• Published date: 02 September 2009
• Author: Anna Kirkland

REVISITING RIGHTS ACROSS

CONTEXTS: FAT, HEALTH, AND

ANTIDISCRIMINATION LAW

Anna Kirkland

ABSTRACT

Doctors need to consider all kinds of traits and risk factors about a person

in a treatment situation, while antidiscrimination law puts significant

restrictions on what an employer can consider about a person in hiring.

These two contexts – health care and the antidiscrimination-governed

workplace – seem to adopt entirely incompatible conceptions of how to

regard the person, and hence, what rights she is considered to deserve.

Therefore, how can we make sense of the claim by fat acceptance

advocates that doctors discriminate against them based on their weight?

Even when little or no formal rights exist for fat citizens in either sphere,

there are nonetheless transformative discourses available that cross-

pollinate each context. Revisiting rights by bringing these two discordant

contexts together helps illuminate problems of injustice that must be

confronted in the future as we move toward a more universal and equitable

health care system in which conceptions of rights must have some place.

Revisiting Rights

Studies in Law, Politics, and Society, Volume 48, 121–145

Copyright r2009 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000048008

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INTRODUCTION: ANTIDISCRIMINATION,

RIGHTS, AND HEALTH

American antidiscrimination law tells employers how to treat (or not to

treat) their employees based on certain protected traits, but no correlative

law tells doctors how to treat patients. To many, it would seem very odd to

apply antidiscrimination-type restrictions to doctors’ decisions about

patients. What is a protected identity trait to be ignored in antidiscrimina-

tion law – race or gender, for example – is an important factor to take into

consideration about a patient. There is an entire competing edifice of the

person in the realm of health care, in fact. We have seen a significant

historical transformation over the past century from concern with infectious

diseases to the management of chronic disease. The patient is often someone

who is presently free of disease or infection, but who presents various ‘‘risk

factors’’ for future conditions (Rothstein, 2003). Risk factors are commonly

about genetic heritage and lifestyle, but quite often they are the same traits

that we consider candidates for antidiscrimination protections. If we accept

that health and health care are sites for significant and troubling problems

of injustice in our society, then this tension between the presuppositions

of health care and the principles of antidiscrimination law demands our

attention.

Much discussion of rights and health has taken place in terms of resource

distribution questions about health care (e.g., Daniels, 1985). Limiting

examination of rights and health to distributive questions, however, has left

untouched the myriad ways that health discourses are also descriptions of

persons – as a patient, as ill, as a cluster of risk factors, as a costly burden

on society, as dangerous to public health, as recovering, and so on. These

accounts of the person often emerge in discursive relationships between

doctors and patients, and intriguing yet relatively unexplored site for

sociolegal studies. I propose to revisit rights by colliding these two realms

hypotheticallytogether: antidiscriminationlaw and health care, as exemplified

by fat patients who feel doctors discriminate against them.

1

Are there any

rights there, either formally or aspirationally?

2

Is becoming a patient the

opposite, or somehow deeply in tension with, becoming a political subject of

rights? Is contesting one’s medical identity somehow linked to changes in

feelings of entitlement to rights? When one’s identity is stigmatized as

unhealthy, can antidiscrimination norms (by which I mean specific legal

rights as well as more broad expectations that antidiscrimination law does

and should apply) assist in building an alternative vision of one’s self?

ANNA KIRKLAND122