Why Study Fat Acceptance?

Everyone is talking about fat people.Footnote ¹ Contemporary American society is experiencing a period of intense media attention and general cultural anxiety over the so-called obesity epidemic. News reporting on Americans' increasing weights spiked dramatically by the late 1990s (from only a few dozen stories early in the decade to thousands) and tend to dramatize, moralize, and individualize body weight, particularly when referring to higher weights among minority populations (Reference Saguy and AlmelingSaguy & Almeling 2008).Footnote ² Being fat is highly stigmatized (Reference BrownellBrownell et al. 2005) and, following the tone of mass media coverage, most people attribute it to individual choices and behaviors (Reference Oliver and LeeOliver & Lee 2005). Editorials have blamed obesity on “feminist careers” because women prepare fewer home-cooked meals these days (Reference Saguy and AlmelingSaguy & Almeling 2008:68), and increasing weights have been used as a metaphor in decrying the “cultural decline from sturdy thrift to flabby self-gratification” as consumer indebtedness drives up bankruptcy rates (Reference LearsLears 2006:13). Attention to obesity supports narratives about the decline of American society from across the political spectrum. On the right, decrying obesity leads naturally to calls for greater personal responsibility and aids in dramatizing the dangerous expenses of national health care. On the left, critics target Big Food, corn subsidies, and junk food advertising to children for making people fat, linking the trend to corporate greed and overconsumption generally.

Scholars from many disciplines have taken note of the political, historical, legal, moral, and disciplinary components of our national focus on fat (Reference Gard and WrightGard & Wright 2005; Reference LeBescoLeBesco 2004; Reference OliverOliver 2006; Reference Saguy and RileySaguy & Riley 2005; Reference Sobal, Maurer and SobalSobal 1995; Reference StearnsStearns 1997). Critical social scientists maintain that the public is being systematically misled by news reporting about obesity as well as by misinformation about the safety and efficacy of diets and weight loss pharmaceuticals. In this view, the supposed epidemic is certainly not worth all the frenzy and looks much more like a moral panic (Reference CamposCampos 2004; Reference GaesserGaesser 2002; Reference Saguy and RileySaguy & Riley 2005). Rhetorics of individual blame and the blend of moralism and attention to self-care termed “healthism” (Reference CrawfordCrawford 1980; Reference Greenhalgh and WesselyGreenhalgh & Wessely 2004) work together with media representations to constitute “common sense” about obesity trends, to echo Reference Haltom and McCannHaltom and McCann's use of the term (2004:10). Everyone simply knows that Americans are fat and getting fatter and that the trend portends disaster.

Concern over obesity trends (and the trends themselves) are worth our careful study for many reasons, but sociolegal scholars have not yet paid adequate attention to the ways that fat works as a sociolegal problem to naturalize and reinforce particular formulations of rights-claiming. The crisis of fat is a compelling contemporary example of a “macro-contextual factor” shaping mass consciousness (Reference McCann, Fleury-Steiner and NielsenMcCann 2006:xxv). Attention to obesity instructs us in proper citizenship, stewardship of our bodies, and in what we can rightfully expect from law and the state (as well as the opposite: what we ought to do for ourselves by willpower, habituation, or good character). Law's durability and ideological power, I suggest, comes in part from its widely accepted accounts of the deserving person as a properly functioning and responsible individual, free of disease, excess, or disablement. This is the person who can work, who looks after him- or herself so that others do not have to, who is health-conscious, and whose body and movement in the world conform to a normalized standard. Mass cultural production of the unhealthy and morally decrepit fat person undergirds an account of what kind of person is undeserving of rights protections.

Despite all the attention, the voices of fat people themselves are rarely heard. Fat men and women are presumed to be in pursuit of weight loss and literally hoping to disappear as fat people. What if scholars reimagined them as citizens with claims to justice based on their status as fat? How would they make arguments for rights? Is resistance to the “lore” about fatness possible, and if so, in what terms?Footnote ³ What do the ways fat acceptance advocates defend themselves tell us about our regime of civil rights protections? My aim here is first to understand more about how these stigmatized people—whose status has been the subject of so much intense public attention but who are not included in any major antidiscrimination law, receiving only scattered local protections—explain themselves and what justice looks like to them. To that end, this article analyzes in-depth interviews with fat acceptance group members from across the country and also draws upon participant-observation and the study of primary source documents from the National Association to Advance Fat Acceptance, or NAAFA. Second, studying fat advocates is a way to ask about the ideological power of the law. How do those who defend fat people confront such a dominating cultural story about fat identity? Does the lore about obesity set the terms for advocates' arguments that they are deserving citizens, and if so, how? Is there a way to move from a context in which, as Vicky puts it, fat people are awkward and ill-fitting, to a world in which they can be graceful and amazing? Are there other terms for advocates' arguments, perhaps mustered from the fat rights movement itself or from comparisons with other antidiscrimination categories? This study combines a recognition of the ways that mass attention to obesity has mattered for legal consciousness with a close study of the terms available for fat citizens to defend themselves against the lore that they are unhealthy, costly, and gluttonous.

Civil Rights Consciousness: Does Fat Fit?

As I noted, fatness is a highly stigmatized trait that is widely regarded as the product of individual fault (Reference BrownellBrownell et al. 2005). The idea that fat people should be protected under antidiscrimination laws is most often met with derision. An editorial by management-side employment lawyers critical of a Massachusetts bill to add height and weight to the state's antidiscrimination law scoffs at the idea of legal protection “based merely on ‘weight’—as if weight were immutable and worthy of protected status on par with an individual's race or sex” (Reference Feldman and AshtonFeldman & Ashton 2007:A11). Another critic likens the proposal to opening the door to all kinds of silly and burdensome rules that have lost any connection to real oppression: “We might as well add colorblind, left-handed, allergic-to-cashews, and get it over with” (Reference MaguireMaguire 2007:B13). National annual spending on weight loss products and services reached $46 billion in 2005 and has been growing at about 6 percent per year (Reference TerlepTerlep 2005), evidence that many Americans are very keen on getting rid of this trait (and persist in hoping they can) rather than on transforming its social meaning or making life easier or fairer for fat people. Even some of my interviewees had only recently thought of themselves as victims of discrimination. As one woman put it, “I didn't think of myself as being discriminated against when I was being made fun of. It was just being made fun of.” When defenders of fat people evoke civil rights rhetoric, it is often to bemoan fat's exclusion from the pantheon of protected traits—it's “the last legally acceptable form of discrimination”—showing that even they understand it primarily by its exclusion from the standard list of appropriately protected traits (e.g., Reference FlanaganFlanagan 1996).

Fat is considered quite unlike the traits usually protected in civil rights laws: race, religion, sex, national origin, age, and disability. Protected traits are classically those that bear a recognized history of oppression and are understood to be outside the realm of personal choice, irrelevant to one's merit and capacities, and in the case of disability, a lamentable affliction to be overcome with gumption and equal opportunity. Fatness, by contrast, is understood as either analogous to smoking (i.e., an unhealthy and deadly condition brought on by behaviors but, once put in place, very difficult to change) or simply as physical evidence of overeating and laziness (primarily an aesthetic problem on this interpretation, but the health critique follows quickly behind). People who see a genetic link to obesity are more likely to think that civil rights protections for fat people would be appropriate (Reference Oliver and LeeOliver & Lee 2005:943) because according to that view it is an immutable trait one cannot help. Otherwise, the way to avoid discrimination is to just lose weight.

Antidiscrimination law conceptualizes unfairness as rooted in governmental classifications that single out and burden groups of people without sufficiently good reason (in the case of equal protection) or in employment decisions based on protected traits (under Title VII of the 1964 Civil Rights Act). The dominant conception of what is gained is the right to be judged as an individual based on what is really relevant and important to the context, not based on stigmatizing, distracting, or irrelevant traits (Reference PostPost et al. 2001). This person is what I call the functional individual, whom I have argued elsewhere encapsulates the dominant logic of the person in American antidiscrimination law (Reference KirklandKirkland 2008).Footnote ⁴ The proper way to evaluate her is to measure her capabilities (that is, her functioning in a job or role) and to keep group-based stereotypes at bay (hence the emphasis on the distinctness of the individual). I purposely use the feminine pronouns throughout because my sample was overwhelmingly female and all the advocates quoted here are women. I devised this follow-up study to chart how ordinary fat people would navigate these dominant legal logics, such as functional individualism, which are also very important for ordinary understandings of justice. As I show, many of my interviewees turned out to be deeply invested in this vision of just treatment in which the body and its abilities are dissociated completely. As one interviewee put it (echoing nearly all the others), “Body size has nothing to do with competence or value, ability to do a job. So I think it should be illegal to discriminate.”

The fact that ordinary people—fat acceptance advocates who have given a great deal of thought to why they are deserving citizens—invoke a logic that is dominant in both the formal legal realm and the realm of citizen-to-citizen discussion is not itself surprising. What is fascinating to watch here is how the advocates must struggle with the contradictions inherent in trying to separate one's body and how it looks from doing a job. The interviewee's statement is, after all, both exceedingly common and deeply perplexing. Of course one cannot predict intelligence by examining the dimensions of someone's body or whether she possesses the level and type of training or experience to do a job. Yet the body is how and where we work (and function) in the most fundamental sense. Many skills are dependent on certain operations of the body (strength, reach, dexterity, endurance, and capacities such as typing, walking, speaking, or fitting into a certain space). Some jobs require that a person's body project an embodied message, such as sensuality, humor, neatness, fitness, perkiness, youth, masculinity, or femininity. Is body size more like eye color, which almost never matters, or more like gender, which is “just the way a person looks” but also so much more? One cannot just be an individual, evaluated as if these social messages were not always constitutive of the person—that is, not if we think that traits such as gender have real meaning attached to them. Employers are almost always permitted to enforce these bodily requirements under Title VII through dress and grooming codes or by arguing that presentation is a necessary part of the job (Reference KirklandKirkland 2006b; Reference PostPost et al. 2001). That is because we do not really mean that we want to ignore these supposedly irrelevant traits all the time. What we really mean is that we want to transform their social meaning, stripping them of some implications (for moral character, for instance) while retaining others (where we feel there is a legitimate link to an aspect of personhood we want to elevate, such as functional capacity).

Disability law, by contrast, captures discrimination against people whose bodies are different in certain medically defined ways, and thus employment protections based on disability do not begin with the pretense of ignoring a person's embodied appearance. A disability rights frame acknowledges that the rules about proper functioning are not themselves neutral, ahistorical, or nonpolitical. A disability is then not something that is just wrong with a person, but rather it is a site of difference that exposes hegemony and injustice in the normal workings of the world. The problem is the stairs, not the legs of the person who uses a wheelchair to get around. This view, termed the social model of disability by scholars in the field, has not filtered into the general public consciousness but remains a founding insight of disability studies (though as I explain below, it is subject to critique for losing sight of the body in the “social”) (Reference Shakespeare and DavisShakespeare 2006). Could there be a new source of civil rights consciousness for fat identity there? Could fat be a trait that prompts us to think more deeply about what it is to both notice something different about a person and at the same time to assess that person fairly? At the moment, however, fat does not fit in the antidiscrimination pantheon because it cannot be squared with functional individualism if fat is unhealthy and folks just bring it on themselves. Fat does not fit into the Americans with Disabilities Act (ADA) framework if it is not an impairment on its own (and the trend seems to be courts holding that it is not [Equal Employment Opportunity Commission v. Watkins Motor Lines 2006], though there is one well-known case saying it can be [Cook v. State of Rhode Island Department of Mental Health, Retardation, and Hospitals 1993]). Currently, then, those who try to come up with legal arguments for fat rights must argue that it is irrelevant and without meaningful implications if they want Title VII-type protections, but that it is a medicalized impairment if they want disability accommodation (Reference SolovaySolovay 2000). It is a fairly impossible position to be in. Fat advocates know this only too well.

Fat citizens' lack of fit into antidiscrimination laws provides a rich perspective on what is required to fit, or at least, what citizens think is required to fit. For those who are quite publicly excluded from legal rights, the bare fact of legal exclusion requires explicit positioning. Reference HullHull shows that gay and lesbian couples enact legality in their relationships through ritual and the use of terminology such as spouse despite being excluded, while at the same time being painfully aware of the cultural power of legal recognition they lack (2006:142–9). Legality, as Reference Ewick and SilbeyEwick and Silbey explain, is what people both draw from and contribute to as they “participa[te]—through words and deeds—in the construction of legal meanings, actions, practices, and institutions” (1998:247). Critically, citizens are “constrained by what is available, by legality as it has been previously enacted by others” (Reference Ewick and SilbeyEwick & Silbey 1998:247). Fat acceptance advocates must enact legality bodily, as they move about the public sphere and go to work, and also discursively, as they describe their personhood in terms that help them fit into a pre-given description of a deserving person. Their identities push up against deep ambiguities in our understandings of what civil rights protections ought to be for and for whom.

Fat advocates lack the cultural and discursive resources that come from national legislation, as the men and women with disabilities in Engel and Munger's study of the interactions of rights and identity had (2003). Despite never filing a lawsuit, the people they interviewed experienced identity transformations as legal change opened up new opportunities and offered new discourses to understand what they deserved out of life and work. So far Washington, D.C.; San Francisco; Santa Cruz, California; and the state of Michigan have added height and weight or (in D.C.) appearance to their list of legally protected traits (District of Columbia Human Rights Act 2007; Compliance Guidelines to Prohibit Height and Weight Discrimination 2007; Santa Cruz Municipal Code 2007; Elliot-Larsen Civil Rights Act 2007). There are only a few recorded cases invoking the Michigan law, which dates to a 1978 legislative session in which a Democratic coalition put as many new traits into the state law as possible. At that time, the concern was for minimum height and weight restrictions that kept women out of male-dominated jobs (later taken care of nationally through disparate impact lawsuits under Title VII of the 1964 Civil Rights Act). There was no thought to fat rights at the time, and very little discussion of the new language. The San Francisco ordinance, by contrast, was passed in May 2000, after fat activists protested a fitness company billboard with an antifat message and secured the crucial support of municipal supervisor Tom Ammiano. As Marilyn Wann, the activist who organized the protests, explained to me, the time was right politically and the elements came together for an explicit act in defense of fat rights. So while the few Bay Area residents in my sample share a sense of mobilization, the Michigan fat activists have only a distant knowledge that a law exists, which none have used formally and only a few have invoked informally.

Fat acceptance group members are emblematic of outsiders looking into the law. They are highly conscious of their exclusion from the formal law nearly everywhere in the United States; they are the subject of high-pitched national media coverage that reinforces the reasons for that exclusion; and they construct their identities using many of the same ideological commitments and meaningful practices that seem to denigrate them, finding little purchase for alternative arguments. They must wrestle with the question of whether being fat is the result of personal choices, and they must contend with the fact that their bodies differ from the norm (without much hope of “passing”). Fat, in other words, interrogates the same issues of choice and bodily difference that we see in disputes over gay rights and disability rights. Fat advocates, as I show, exemplify a highly constrained and defensive enactment of legality, but one that must be enacted publicly and with as much dignity as one can muster, again and again, every day, in and through a body that no one will ignore.

Methodology: What Is the Fat Acceptance Movement and Who Joins It?

The targeted population for sampling was defined as members of fat acceptance organizations, operationalized as anyone who had been a member or leader in NAAFA. Founded in 1969 and bearing an acronym reminiscent of the NAACP, the organization balances its civil rights orientation with concern for members' social lives. The official account on the NAAFA Web site is capacious: it is a “non-profit human rights organization” working to “eliminate discrimination based on body size” and provide “self-empowerment” (National Association to Advance Fat Acceptance 2008a: n.p.). The preamble to the NAAFA constitution contains explicit civil rights language: “Millions of fat Americans … constitute a minority group with many of the attributes of other minority groups: poor self-image, guilt feelings, employment discrimination, exploitation by commercial interests, and being the subject of ridicule” (National Association to Advance Fat Acceptance 2008b: n.p.).

The conference program from the 2005 NAAFA convention illustrates the organization's different aims in interesting detail. The greatest number of workshops offered (17) focused on activism and political change (including a feminist caucus and a workshop on changing the corporate workplace).Footnote ⁵ The next most popular category was health and fitness, with 11 workshops including water aerobics, dance, and diabetes management. There were eight arts and crafts workshops, six personal care sessions on topics such as travel and “reclaiming our power to love ourselves,” and four sessions on sexuality (with titles such as “men who love fat women” and “everything you ever wanted to know about fat sex but were afraid to ask”). Conferences also featured a private pool party, a fashion show, and a dinner dance.Footnote ⁶ More politically minded leaders such as Wann have been trying to push the organization in a more activist direction in recent years, and the abundance of overtly political workshops shows that they have had considerable success. So while I do not claim that NAAFA members are necessarily devoted to rights-claiming (and in fact they may attend conferences for all the other fun things), I nonetheless stipulate that it is the most important and most prominent organization pushing against the dominant conceptions of fat people. That it does so in multifarious and complex ways should not surprise us.

I do not go to the lengths of Reference LukerLuker (1984) to include all major leaders of the movement, so like Reference KostinerKostiner (2003) I do not make any claims of representativeness or comprehensiveness in the sample of members. Leaders of local NAAFA chapters were identified and contacted through chapter Web sites. This recruitment method was probably more likely to capture more politically minded leaders in NAAFA chapters than more casual “social” members. Snowball sampling yielded additional interviews from members of similar groups. Of course, by virtue of joining a fat acceptance organization, these men and women are preselected for positive views about being fat. I do not therefore investigate whether or not they support fat rights. I am interested in the logics they use as they describe their fat acceptance, and what those logics reveal about what is necessary for rights claiming. Interviews took place between May 2005 and January 2006. Because of the distances involved, most interviews took place by phone.Footnote ⁷ The final sample contains 35 interviews of fat acceptance group members from nine U.S. states (California, Illinois, Michigan, and New York were well represented because these states have active NAAFA chapters), and one from Canada. Four are men and thirty-one are women. They are overwhelmingly white, educated, middle-aged and middle-class, though the sample includes one female fat admirer (FA, a person who desires a fat partner) working as a janitor, one African American male FA working as a truck driver, one Latina, and one self-identified white lesbian. It is unlikely that a larger sample would have been much more diverse, as the tendency of fat acceptance groups to contain mostly white fat female members and thinner white male FAs (all assumed to be heterosexual) has been well documented (Reference GimlinGimlin 2001; Reference GoodeGoode 2002; Reference MillmanMillman 1981).Footnote ⁸ Fat acceptance group members are not the classic powerless subjects of rights featured in work on the welfare poor or the homeless (Reference CowanCowan 2004; Reference GilliomGilliom 2001; Reference SaratSarat 1990); they are more usefully compared to unionized workers or social justice activists (Reference KostinerKostiner 2003; Reference McCannMcCann 1994; Reference PollettaPolletta 2000). Because, as Reference Ewick and SilbeyEwick and Silbey point out, “social marginality is related to counterhegemonic consciousness” and my interviewees are not socially marginal (aside from their fatness, which many experienced as very marginalizing), to select this group to articulate the views of fat people is likely to preselect for more mainstream views (1998:234). Their integration into mainstream American culture makes their struggles with rights claims all the more compelling, however. They are dedicated to the same sets of norms that are so dominant in antidiscrimination consciousness, yet cannot help but expose the rickety features and contradictions that sustain it.

The absence of racial diversity in particular is important, given evidence that nonwhite men and women experience both body size norms (Reference KemperKemper et al. 1994) and relationships to the law (Reference NielsenNielsen 2000) differently than middle-class whites do. Scholarship detailing the exact kinds of differences that come with minority racial identities is not consistent on either axis, however (Reference CachelinCachelin et al. 2002; Reference Engel and MungerEngel & Munger 2003; Reference Fleury-SteinerFleury-Steiner 2004), so I cannot presume to know how my results might differ if the sample were more racially and ethnically diverse. This group of interviewees also cannot throw much light on the dynamics of fat identity in a non-heterosexual context, though it seems likely that sexual minority communities might have different views (and different from each other, particularly between gay men and lesbians). The lack of solidarity my subjects exhibited with disabled people is also likely related to the study design. Most people interviewed here reported themselves to be in the range of 250 to 400 pounds. My interview subjects would be recognized in most contexts as quite fat but for the most part were not housebound or users of scooters. Other research on NAAFA members with a wider range of sizes and abilities has found greater willingness to invoke disability as an analogy (Reference Saguy and RileySaguy & Riley 2005).

Members were initially told that I was interested in hearing their reflections about being in the fat acceptance group without any mention of law or civil rights. Interviews consisted of first, general questions about how the person came to join the organization; second, questions about the person's “experiences of unfair treatment”Footnote ⁹ and third, prompts to discuss the desirability of antidiscrimination laws protecting fat people and to explain why fat people should be included, the grounds for such laws, the effect of such laws on the person's life, and any experiences with using such laws. The interview questions did not explicitly refer to law or discrimination until about halfway through, making it possible for me to watch for the interviewee's invocation of law (or its absence) and to see what he or she would first discuss under the category of “unfair treatment” (Reference KostinerKostiner 2003; Reference NielsenNielsen 2000). Interviews lasted about an hour and were digitally recorded and transcribed verbatim. All names are pseudonyms (many selected by the interviewees, some unusual). Quotes have been lightly edited for length and clarity.

Managing Fat Identity in Everyday Life

This section describes in detail how the people I spoke with manage their spoiled identity (Reference GoffmanGoffman 1986). No one had ever filed a formal complaint over a weight discrimination issue (and of course, very few of them could). Yet the fat acceptance group members described a regular set of distinct techniques they used to constitute an identity that was consonant with being a good worker and an individual rather than a health statistic. They described a richly detailed construction of a public self through which they anticipated, managed, and settled eruptions of discrimination and harassment. The techniques described here are consistent with previous research about this group (Reference Maurer and SobalMaurer & Sobal 1995; Reference Sobal and MaurerSobal & Maurer 1999), though my aim here is to explain their connection to rights consciousness. The work on the self and the development of culturally shared techniques for being a fat person in public are interdependent, showing how a person who understands herself as deserving yet excluded can still muster a form of legal personhood. This legal personhood is constituted by its exclusion but simultaneously by its commitments to the basic ideological underpinnings central to our antidiscrimination regime. It is a public identity for fatness that is suffused with legality but also guided by, as Reference LeBescoLeBesco puts it, “pursuit of an inhabitable subject position for fat people” (2004:124). I call their techniques (1) moral instruction, (2) redirecting shame, (3) scanning, (4) positive self-presentation, and (5) ignoring the mistreatment.Footnote ¹⁰

Mustering Legality: Using the Master's Tools Defensively

Conclusion: Deterring and Channeling Arguments for Rights

The national focus on obesity has provided a unique opportunity to study the invocation and deployment of legal consciousness in a very specific but crucial dimension: a moment of great attention (and extremely negative attention, at that) on a highly visible group of citizens who must then struggle to muster an account of themselves as deserving of rights, despite their near-total exclusion from legal protection now. Undocumented immigrants, terror detainees, and gay and lesbian couples seeking to marry are related groups in this sense who must also draw upon settled logics of dedication to work, civil liberties or religious freedom, or monogamous commitment, respectively. In these cases as well, reference to already-dominant logics may be politically expedient, but they submerge more difficult questions about how to deal with difference. Hardworking and eagerly assimilated immigrants may be well regarded, but what about those who really do transform the American national identity rather than embrace it? One may easily agree that terror detainees need access to lawyers, but the question of whether terrorism is better conceived of as criminal activity, as wartime aggression, as resistance, or as something else still remains. Heartwarming photos of couples lined up outside San Francisco City Hall to marry set aside the question of why marriage remains such a legally privileged status in the first place. This group of fat acceptance advocates has embraced a rights discourse that resonates strongly with the pre-existing antidiscrimination ethic. They sit uneasily within it, though, and their formulations often set aside pressing dilemmas within our antidiscrimination tradition. Moreover, simply proliferating identity politics means replicating a strategy that has in the past produced bitterly limited demands for other groups while failing to achieve much politically (Reference BrownBrown 1995). Perhaps time spent so far outside of inclusion in antidiscrimination laws will mean that fat acceptance politics will develop more varied and creative avenues for protecting and celebrating fat people (like some being developed at the conferences). Only time will tell if fat advocates are presciently ahead of public opinion despite their exclusion from most formal legal protections, in which case, as Reference GouldGould's work on campus hate speech codes shows (2005), they might obtain concessions and protections at work, as consumers, and in public spaces without any formal legal account of their identity.

For now, fat people's liminal position outside civil rights protections has let us see the possibilities and limits for fat citizens to articulate why they should be let in. Studying legal subjects at the margins so often turns out to be a way to better understand the center. Antidiscrimination consciousness, as I have argued, is sustained at the center by a set of ideological commitments to a certain kind of deserving person. The description of this deserving person slides off the tongue quite easily, as does its accompanying logic of “just treat a person as a person, not a size.” One might think the biggest challenge is changing public opinion about whether fat people can reasonably lose weight, and then legal protections will soon follow. But I suggest in these concluding observations that fat advocates have shown us a greater challenge: how to push beyond the tensions that assail the center of antidiscrimination consciousness as we realize just how fragilely imaginary the truly deserving person is. Real questions of justice loom for fat persons, who are both like and unlike those imagined deserving ones. In fact, sometimes they are hard to tell from everyone else.

Reference SilbeySilbey suggests that perhaps the study of legal consciousness has run its course and drifted too far from its original critical focus on ideologies. She urges scholars to “recapture the critical sociological project of explaining the durability and ideological power of law” (2005:358). I have suggested here that the durability and ideological power of law is built out of the terms even oppositional activists must use to confront the status quo—critically, out of the terms they do not use, the arguments that cannot be coherently formulated. Reference Haltom and McCannHaltom and McCann argue that “legal lore contributes to hegemony to the extent that it sustains a pervasive taken-for-granted, commonsense knowledge on which the prevailing order rests” (2004:304). The common sense of antidiscrimination law is that it protects deserving people who can function just as well as anyone else from being unfairly judged based on an irrelevant but historically stigmatized trait. “The common sense about law does not preclude or determine contests over legal meaning,”Reference Haltom and McCannHaltom and McCann continue, “but it works to deter some conflicts while channeling others into safe, manageable trajectories and venues” (2004:304–5). Legal lore is an expression of liberal ideology that “defines both causes and evidence of failure in individualistic terms that efface attention to larger patterns of harm, systemic analysis of power relations that structure interaction, and collective responses to shared loss, gain, and aspiration” (2004:304–5). So how have contests over the legal meaning of fat identity been either deterred or channeled? How do fat acceptance advocates’ own arguments share in and react to those deterrences and dislocations? What have we lost in this channeling-off of fat rights claims? What can we see more clearly about civil rights consciousness generally?

First, deterrence comes from mass culture as elites simply make the inclusion of height and weight clauses sound ridiculous. Lumping in weight-based discrimination claims with the “allergic-to-cashews” folks (per Reference MaguireMaguire 2007) reduces those claims to simple whines by overly sensitive people who do not really deserve rights. Of course, critics are quick to offer, we oppose discrimination against race and sex, but come on—fat people? The effect is to shore up and reify acceptance of “true discrimination” (though, as Reference HermanHerman [1996] points out, conservatives eager to parse those deserving of rights from those who are asking too much often fail to support measures devoted to the supposedly urgent problems of the truly deserving, as in the case of race discrimination, for example). Pointing out how undeserving fat people are holds up the ideal of the citizen who takes care of her own health through the cultivation of virtuous personal habits. A “collective response to shared loss,” as Reference Haltom and McCannHaltom and McCann put it (2004:304–5; think of national health insurance), slips away in favor of the fantasy that we can each control our own bodies if we just try hard enough.

Second, we have seen here how fat citizens channel energy into practices of self-management. These techniques—moral instruction, redirecting shame, scanning, positive self-presentation, and ignoring the mistreatment—are sometimes empowering but often are not. They attempt to replicate but cannot replace what formal legal protections might provide. The few thousand NAAFA members in the country, led by a small cadre of activists, mobilize in more traditional ways, but for the most part these enactments are scattered, localized, and interpersonal. They are not yet a match for the relentless messages of mass culture. Perhaps advancements in fat acceptance will not come through anything like rights or social movements but through market forces (adapting to our changing bodies) and as more and more people come to see themselves as fat. The techniques my interviewees described will be shared by enough people that it will be much more common to ask, after scanning a room, “Why aren't there chairs here that will fit us all?”

The third way that contests over the meaning of fat in antidiscrimination consciousness are channeled and deterred is through advocates' self-descriptions using the terms set by healthism and functional individualism. Again, because of the weakness and diffusion of the advocates' message in the context of an overwhelmingly negative cultural message about fat, their first responses must be defensive. Defensive use of the master's tools means that more radical conceptions of what our society could be do not have a chance to be well articulated. “But isn't it unhealthy? It's not like being black, right? Shouldn't you just try harder next time to lose the weight? Shouldn't businesses be able to protect themselves from the costs of fat employees?” In this first line of defense, advocates are up against an edifice of professional knowledge and must cite opposing studies. The next formulation is to make analogies to already protected groups. These analogies are highly constrained because advocates know perfectly well the comparisons are not exactly on point and because the one that ties in most closely—disability, because it actually confronts bodily difference—is highly medicalized and defanged, drawing them right back to the health issue.

The last move is the one I want to draw attention to here. It is to object to those grounds for debate in the first place, invoking dignity or the misery of dieting. Because of the need to talk about health and abilities of fat people first, the opportunity to let the gravity of the second critique sink in is lost. After talking for a while, Vicky, Macskat, and many others proposed that the real harm of fat discrimination is the punishment of variation and deviance from the norm. They suggested that instead of ushering fat people into the category of the potentially healthy (depending on the individual), we should simply stop caring so much about the fact that fewer and fewer of us fit into the “normal” Body Mass Index (BMI) range of 18–24.9. Perhaps it is a deeply unsettling idea that the goal of the war on fat is a world in which everyone's body fits into this normalized range. Perhaps we could also be more relaxed about other “others” such as immigrants, wearers of the hijab, people who need help going to the bathroom, conservative talk show listeners, and pit bull owners. A fully realized sense of calm pluralism could slide into a shallow relativism, to be sure. (Vicky and Macskat cannot really mean we should respect absolutely everyone, after all—people who love to torture puppies?) They mean much more, but also a bit less than they were able to explain. Their approach works better as an account of what the world could be like, coaxing the interlocutor along, than as a logical progression in legalistic terms (“Is it a choice? If not, then is there evidence of group-based discrimination? Can people with this trait still do the job? Then maybe they should be included.”) But we have scarcely given it a chance. As difficult as it will be, we might try talking less about fat people's health and more about our own attitudes toward difference.