15 September 2012

Forms and Norms

'The Right to Be Fat' by Yofi Tirosh in Yale Journal of Health Policy, Law, and Ethics (forthcoming) comments -
Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental and grim outlook, preoccupy public health experts, scientists, economists, and the popular media. In the legal field, however, discussions have tended to focus on whether weight should be a protected category under antidiscrimination law and on cost-benefit models for creating incentives to lose weight. This Article takes a novel approach to thinking about weight in the legal context. First, it maps the diverse ways in which the law is recruited to “the war against obesity,” thus providing an unprecedented account of what it means to be a fat legal subject under current U.S. law. Second, maintaining that the antidiscrimination framework provides a necessary albeit insufficient context for fully capturing the meaning of being fat, it formulates the question of legal regulation of body size as a question of liberty, which is unpacked in terms of autonomy and human dignity. Drawing on the critique of mind-body dualism, and on the philosophical tradition of phenomenology, this Article offers a new framework for understanding the experience of being a fat subject of the law; one that goes beyond the medical conceptualization of body size and addresses the nuanced ways in which body size and shape and ways of eating and moving the body have intimate meanings for legal subjects. Addressing practical dilemmas such as the legitimacy of charging fat passengers for two airplane tickets or whether weight-based employment discrimination should be prohibited, it concludes that if American constitutional law is to remain coherent in its protection of liberty, autonomy, and dignity, it must recognize a right to be of any body size, including the right to be fat. 
Another perspective on conformity is provided in '(No) State Interests in Regulating Gender: How Suppression of Gender Nonconformity Violates Freedom of Speech' by Jeffrey Kosbie in XIX William & Mary Journal of Women and the Law (2012).

Kosbie argues that -
 Despite limited growth in legal protections for transgender people, dress and appearance are largely treated as unprotected matters of personal preference. In response, lawyers and scholars argue that dress and appearance are intimately connected to the expression of identity. Nonetheless, courts have generally deferred to the government’s proffered justifications for these laws.  
This article refocuses on the government’s alleged interests in regulating gender nonconformity. Using a First Amendment analysis, the article reveals how seemingly neutral government interests are used to single out conduct because it expresses messages of gender nonconformity. This approach avoids impossible questions about the subjective intent of the individual to express their identity. 
Drawing on social constructionist theories of gender, this article establishes that dress, appearance, and other behavior communicate the social meaning of gender, and should be understood as communicative under the First Amendment. When the state singles out conduct because it expresses gender nonconformity, the state’s interests are related to the suppression of a message. This violates freedom of speech under the governing O’Brien doctrine. Testing the theory against actual cases involving government employment, child custody, and restroom access, the article recognizes legitimate government interests in privacy, safety, and efficient workplace environments. However, the article argues that under present doctrine on freedom of speech, the government may not suppress gender nonconformity as the means of achieving these ends.