Negative Space in Antidiscrimination Law: Fat and Transgender Plaintiffs

Thanks to everyone here for having me as a guest.  I've kept quiet until now because I've been doing some thinking, about tenth grade art class, antidiscrimination law, and of course, the incredible awesomeness that is Gossip Girl's season 2.  I'll save my insights on Gossip Girl for a final exam in the near future.  For now, I'd like to air some thoughts my friend and co-author, Zak Kramer, and I have had about negative space in antidiscrimination law.   Zak and I have recently submitted a review essay on Professor Anna Kirkland's Fat Rights: Dilemmas of Difference and Personhood.  The review essay isn't up yet on SSRN, but I'll blog about it, and some other projects, during my time here at The Faculty Lounge.

Negative space, for those who may have blocked out art class, (or for that matter, all of tenth grade), is the space between or around objects in an image.  In our review essay, Zak and I focus on the negative space in antidiscrimination law that comes into focus in Fat Rights.  Antidiscrimination law does not protect against discrimination on the basis of being fat or transgender.  Yet antidiscrimination law has protected both fat people and transgender people. In her important and engaging book Fat Rights, Professor Anna Kirkland paints an illuminating picture of antidiscrimination law by highlighting its negative space – in particular, Kirkland highlights the absence of protection the law provides for fatness.  Kirkland also highlights how antidiscrimination law has protected fat people, even though it has not protected fatness.

In focusing on fatness, Kirkland identifies negative space outside antidiscrimination law’s bordering frame.  However, the picture Kirkland paints in Fat Rights reveals negative space not only at the edges of the antidiscrimination law picture, but in between its positive protections, as well.  After all, Kirkland’s book is not just about fat rights. Although she spends considerable time focusing on fat rights in particular – including the case law on fat discrimination, the few existing statutory and administrative protections against fat discrimination, and the growing scholarly literature on fatness – Kirkland attempts a more universal project about antidiscrimination law.  Kirkland’s universal project is to determine what the essence of antidiscrimination law is, in order to then determine what the essence of antidiscrimination law should be. In carrying out her universal project, Kirkland creates an entirely new way to talk about differences among people, thereby ensuring that conversations about antidiscrimination law will never be the same. In Fat Rights, Kirkland joins a growing community of scholars seeking to transcend antidiscrimination law’s categories to determine “which differences matter, which ones are incidental, and how to tell between them.”

The conversation about the future of antidiscrimination law’s categories can take place, as it does in Fat Rights, by examining fatness, a category that is clearly unprotected. An extension of the same conversation can take place by examining trangenderism, a category whose protection falls not wholly outside of antidiscrimination law’s protective frame, but in a pocket of negative space within it.  Because their transgenderism situates them within a protected category (sex), but in-between the two options that category presented (male and female), these plaintiffs have been able to fit their claims within existing protections. In this way, even though these transgendered plaintiffs’ claims have not been based on their transgenderism, their transgenderism has still mattered to the success of their claims.

In our Review Essay, we argue that plaintiffs in antidiscrimination law’s negative space – whether inside or outside the confines of its categories – share the frustration that the law sees them differently from how these plaintiffs see themselves.   By extending Kirkland’s discussion in Fat Rights to transgenderism, we use Kirkland’s book as a point of entry into the negative space of antidiscrimination law. While we enter the negative space Kirkland has deftly mapped, we enter it from inside antidiscrimination law’s protections rather than outside of them.

Comments

[John C]

This topic sounds very interesting, in theory, but your post is rather . . . opaque. As in, I'm not sure what you are talking about. Will you post again to clarify just what exactly your ideas are?

[Jillian Weiss]

Unless I misunderstand, this quote is incorrect: "Antidiscrimination law does not protect against discrimination on the basis of being fat or transgender." In fact, there are over 20 states and almost 100 cities with law that prohibits discrimination on the basis of gender identity. Can you explain?

Dr. Jillian T. Weiss
Ramapo College
http://transworkplace.blogspot.com

[REBAGibbs31]

I guess that to receive the personal loans from banks you should have a firm reason. But, one time I've got a secured loan, because I wanted to buy a car.