Size as a human right in a #MeToo world

Feet on a scale. Photo: Jodi Green/flickr

In May 2017, Quebec court judge Jean-Paul Braun decided on a case in which a 17-year-old young woman was sexually assaulted by a cab driver. Justice Braun said, "you could say she's a little overweight, but she has a pretty face, huh?" and went on to suggest that perhaps the victim was a "little flattered" by the sexual attention, implying that her size made her unattractive to most men.

We're living in a time when sexual assault and fat‑shaming are both concepts receiving a lot of attention. While sexual assault has dominated headlines and those headlines appear to be affecting behaviour and in some cases, laws, a larger discussion of fat‑shaming hasn't quite broken through to the mainstream in the same way.

In Canada, size is still an acceptable basis for discrimination, not protected by human rights legislation. It ought to be. And in certain lights, the two issues are different sides of the same (sexist) coin.

In December 2015, before #MeToo really took root, The Atlantic published an article by Olga Khazan about a connection between obesity and prior sexual abuse, describing a number of obese women who were previously the victims of abuse. Khazan noted:

"Research suggests childhood sexual abuse increases the odds of adult obesity by between 31 and 100 per cent. One study found that about 8 per cent of all cases of obesity, and 17 perc ent of "class three" severe obesity, can be attributed to some form of child abuse."

The #MeToo ball really got rolling on October 5, 2017 when The New York Times broke a story describing decades of Harvey Weinstein's sexual misconduct against Hollywood stars in the making. According to actor and victim Jennifer Lawrence, Weinstein once said to her that "[he] didn't know why everyone thought [she] was so fat; [he] thought [she] was perfectly 'fuckable.'"

Obesity, size‑ism and sexual assault are intricately linked. We're making progress on sexual assault. Why not size-ism?

As a few recent examples show, discrimination on the basis of size is all too commonplace:

  • In August 2017, the CBC brought to light the case of the Sheraton Cadwell Orchestra, a Toronto‑based now‑defunct orchestra that sent an email to its singers to say that "although all of our vocalists are fit and slim -- the way our boutique orchestra would like our front line performing artist to be ... two of our featured singers were not ... and we hope that they would, as such, refrain from using tight‑fitting dresses and use loose (less physically-revealing, less physically‑accentuating) dresses instead." The email went on to ask its singers not to draw attention to their "dietary indulgences."

  • Also in 2017, BBC News reported that Aeroflot, Russia's national airline, has linked the pay of its flight attendants to their dress size! Their defence? The extra kilos of weight a flight attendant carries costs more in fuel. They must be joking. According to Wikipedia, a fully loaded 747 weighs 439,985 kg. The very largest flight attendant is unlikely to top more than 100 kg -- extremely insignificant in comparison.

  • In 2016, Connie Levitsky made international headlines when she was fired from plus-sized women's retailer Addition Elle in Edmonton, for writing an online post about her experience helping "fat ladies," like herself, find clothing.

Like many others, I was shocked. But we know that these are not isolated incidents.  

What recourse do these women have? Without human rights protection, not much. 

And efforts are being made to add other prohibited grounds of discrimination to the list. For example, on October 4, 2017, Ontario Liberal MPP Nathalie Des Rosiers introduced a private member's bill, Bill 164, the Human Rights Code Amendment Act, to add immigration status, genetic characteristics, police records and social condition to Ontario's Human Rights Code's list of protected grounds.  She noted that "it is the role of government to ensure that we confront discrimination in a proactive manner, and this bill, if passed, would empower the Human Rights Commission to educate and to act to ensure a more equal society, free of all forms of discrimination."

No doubt -- each of these are important and worthy of consideration by the legislature. Her bill did not, however, include size. Regardless, it was referred to committee on October 26, 2017, where, like most private member's bills, it will surely die as Ontario approaches its June election. 

The discussion of including fat or size as a protected ground has come up in other provinces. A year ago, Manitoba Liberal MLA, Jon Gerrard, pushed his private member's bill to get physical size or weight added to that province's human rights legislation. His bill was defeated by Manitoba's governing Tories last November. Following the vote, the Winnipeg Free Press reported that Mr. Gerrard noted, "We had representation from the Little People of Manitoba," referring to dwarfism, he said. "We had representation very concerned about eating disorders... discrimination against people whether it's fat or thin bodies, representatives working with people who are large-bodied. They were all very disappointed."

A recent article from the Ontario Bar Association's publication Just says that there is no need to have size as a separate protected ground because disability is already protected. I would argue -- and I'm not alone -- that conflating size with disability is inappropriate for those who are outside the range of standard sizes but do not see themselves as disabled. The singers of the Sheraton Cadwell Orchestra would surely not. A recent York University study produced evidence that an overweight person can be healthy depending on the level of activity -- pretty much like the rest of the population.  

Furthermore, the human rights system is not afraid of nuance in its legislation. In Ontario, for example, race, ancestry, place of origin, colour, ethnic origin, and citizenship is each a protected characteristic, even though some might argue that the distinctions between each of these are so subtle that they are routinely all named in a belts‑and‑suspenders approach to completing a human rights application. 

Jill Andrew, the co-founder of the Body Confidence Canada Awards, has worked with local leaders to petition provincial governments now in Saskatchewan, Alberta, Manitoba and Ontario to include size discrimination in human rights legislation. No action yet, but there's a whole lot of people out there waiting.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

Photo: Angie Torres/flickr

Photo: Jodi Green/flickr

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