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

Date02 September 2009
Published date02 September 2009
AuthorAnna Kirkland
Anna Kirkland
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
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
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.
Are there any
rights there, either formally or aspirationally?
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?

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