This year should be binned for many reasons, but last week was a real low with the addition of post-election fatigue, coupled with the resurgence of Covid-19. Amid the madness was Judith Collins' remarks over the "obesity crisis" suggesting it is all a matter of personal choice.
The saga blew over faster than the abrupt end to campaigning on election day - thanks to the election day campaign electoral law restrictions.
But, it is worth noting that no New Zealand government has tackled the obesogenic environment effectively, and there is nothing to suggest this new one will. Instead, rhetoric around blaming the individual has once again thrived, which has fuelled what may be unrecognised discrimination in the process.
Placing responsibility for weight control on individuals suits the food industry, and the Government, which avoids putting in place regulations that restrict the free market. It is a class issue too, where poorer communities are swamped with unhealthy food options.
While millennials might be mocked for spending their cash on avocado on toast, you have to question why an avocado is $5 a pop, meanwhile there is an entire aisle in supermarkets dedicated to sugary drinks. Surveys show that the population supports a sugar tax, so the only people holding this up are the Government in bed with the big snack industry. According to a UMR poll, 67 per cent of New Zealanders were in favour of a sugary drinks tax in 2017. Only 26 per cent opposed.
Then there is the diet industry - designed to "tackle" the problem, which was worth US$121 billion (NZ$180b) in 2009. In the US, studies have shown that after about five years, 41 per cent of dieters gain back more weight than they lost. Long-term studies have shown dieters are more likely than non-dieters to become "obese" - a term considered to be a pejorative by the fat community because it pathologises people - over the next one to 15 years.
Obesogenic environment expert Boyd Swinburn put it best in a letter to the editor: "Judith Collins was asked whether she took personal responsibility for her political disaster this weekend. She said she takes full responsibility for trying very, very hard but there were so many contextual factors working against her to explain her rather visible failure. Sounds very much like the situation that people with obesity find themselves in."
Personal choice and Protestantism
Undoubtedly the final decision to consume a particular food or beverage, or to exercise or not, is an individual decision. But so too is wearing a seatbelt, smoking, driving on the road, or assaulting people. It comes down to the Protestant ethic ideology - which emphasises that hard work, discipline, and frugality are a result of a person's subscription to the values of the faith. In other words, if you work hard enough, you can be thin. The flow-on effect of the Protestant ethic of personal choice is that weight stigma is enforced, portraying individuals as gluttonous, lazy, or selfish. Gluttony and sloth, of course, are two of the seven deadly sins.
While fatter people suffer oppression, thin people are conversely advantaged. Numerous studies have shown thin people can eat in public without ridicule; experience few questions around exercise or health; pop culture reflects bodies that are similar; clothing is more accessible; and public transportation and public areas accommodate thin bodies exclusively, for example.
Weight discrimination in law
Weight discrimination exists, but tackling it is a another issue. In a legal context there have been two main approaches. One is to classify obesity as a disability, which has been criticised by the fat activist community, who argue there is nothing wrong with being fat. Another option is to make obesity discrimination illegal in and of itself. Overseas for example, the European Court of Justice ruled in favour of a childcare worker who claimed he was fired because of his weight. He was fired after he could not bend down to tie his shoes. The court held obesity could be considered a "disability".
In the US, attempts to provide legal redress for obesity-related discrimination have had limited success. The Americans with Disabilities Act 1990 has been interpreted to include weight discrimination as an extension of the definition of disability. But most applicants to date have been unsuccessful in these cases, as courts generally viewed obesity as a voluntary condition and therefore disqualified it as a disability.
Much of the case law in the US derives from an employment context. It is a response to perceived employment discrimination, but not stigma as a whole. In a US case study, an obese woman applied for a grocery store job saying she had no physical limitations that would interfere with her ability to do the job, but she was not hired. After questioning the outcome, she was told that at 305 pounds (138kg), there were issues with her weight. Her options were to pursue legal action through either disability or gender discrimination avenues. She chose to pursue a disability claim and lost at the State Supreme Court because of the narrow way in which it defined perceived disability.
In New Zealand, the Human Rights Act 1993 specifies age, marital status, gender, religion, ethnic origin, ethical beliefs, colour, race, employment status, disability (note weight is not included), sexual orientation, political opinion, and family status. You could take a case to the Human Rights Tribunal on the grounds of disability, but it is an avenue that has not been exercised by the public.
Unlawful discrimination under the Employment Relations Act 2000 suggests discrimination on other grounds such as weight, height, being a smoker, or having a criminal record is not unlawful unless it leads to indirect discrimination on one of the unlawful grounds. The issue is, as I have iterated before, that it is difficult to prove indirect discrimination. The medical community may have barriers relating to BMI for those wanting to access publicly funded IVF treatment, for example. They argue that the effectiveness of the treatment diminishes as BMI (body mass index) increases.
What does this mean? There are few legal remedies, which could be improved if weight were to be added to the human rights matrix. But even so, it does not address a major blind spot in New Zealand politics - that the food and beverage, advertising, and diet industries are flourishing, and with it so too is fat stigma.