by Sherry F. Colb
In my column on Verdict this week, the second in a two-part series, I discuss the Sixth Circuit's ruling in United States v. Skinner that when police track an individual's movements through his cellphone signal, they do not perform a "search" for Fourth Amendment purposes and may therefore act without a warrant or probable cause. In the column, I discuss the relation between this case and the U.S. Supreme Court's decision last term in United States v. Jones, holding that attaching a global positioning device to a man's vehicle and thereby tracking the man's location on the public roads does qualify as a Fourth Amendment search and was accordingly unlawful in the absence of a search warrant. In a follow-up post on this blog, I analyzed the larger issue of form over substance in the law.
In this post, I wanted to address a completely unrelated phenomenon, one that I have come across several times in the last few weeks: the comparison some people make between those (doctors and others) who promote weight loss in overweight people and those who promote sexual-orientation-conversion in gay people. My strong inclination is to reject this comparison outright, but as an exercise for this post, I will briefly attempt to make the case for its validity. Then, possibly in a future column or post, I will go into more detail and almost certainly take a more critical perspective on the analogy.
So first, what exactly is the comparison? In the two places where I recently encountered it, it goes something like this, in the words of one person who describes herself as a "fat advocate": I weigh much more than the average American, and I have no problem with that. Other people, however, implicitly judge me for my weight and try to characterize it as a mental, emotional, and/or physical disorder, which can then be "treated" by medical professionals. I regard this sort of talk as a form of discrimination against "fat people" that our society ought to approach with the same scrutiny and concern with which it approaches discrimination against gay people that takes the form of "reparative" or "conversion" therapy.
In defending this seemingly odd comparison, I would identify some relevant areas of commonality. To describe the category of people who weigh more than average, I will use the phrase "overweight people." I realize that "overweight" is a normative term that implies a corresponding ideal weight, but "fat" sounds offensive to me, so I will stick to "overweight," with regret for the possibility that this term may well sound offensive to some readers.
One area of commonality between gay people and overweight people is that both have unquestionably encountered serious discrimination on the basis of their membership in these respective classes. Membership in either category triggers antipathy in many people who may prefer, for example, to hire employees whose sexuality is conventional or whose weight conforms to the "normal" range. And school kids have a deplorable history of bullying both gay children and overweight children, using derogatory terms to refer to those who are viewed as being in either group. Though this mistreatment has improved somewhat over time, being gay or overweight has often meant being bullied, excluded, and otherwise treated badly because of a trait that is either very difficult or impossible to change. I must acknowledge here that the extent of bullying differs quite a bit between the two groups, but that may -- perhaps -- be a matter of degree rather than kind.
A second area of commonality is the classification of behavior associated with membership in the two groups, respectively, as sinful or immoral. Being gay is, of course, associated with same-sex sexual relationships, and various religions have treated and continue to treat such relationships as an indulgence in lust, one of the deadly sins. Being overweight is likewise associated with another of the "deadly" sins, gluttony. To be outwardly gay or outwardly overweight is to be "out"' about the fact of one's indulgence (in gay sex or in overeating), a fact that triggers negative, morally-tinged (or expressly moral) judgments.
A third area of commonality gets us a bit closer to the original claim: health professions have taken an interest in both sorts of behavior and attempted, at various times, to pathologize it and then "treat" it. Until 1973, when the Diagnostic and Statistical Manual of Mental Disorders declassified "homosexuality" as a mental disorder, psychiatrists had considered it a type of mental illness. Similarly, many in the psychiatric profession considers some overeating characteristic of a compulsive disorder.
Historically, gay people have encountered "aversion" therapy, in which a medical professional attempts to eliminate same-sex desire by pairing it with extreme nausea or other noxious stimuli. Overweight people have, perhaps similarly, received chemical and surgical interventions that made it difficult for them to eat as much as they would like to eat (gastric bypass surgery is just one example). And along this same therapeutic dimension of commonality, it also appears to be the case that a large proportion of those who undergo either form of "therapy" -- whether to go from being gay to being straight, or to go from being overweight to being slim -- fails to meet the desired goal. That is, the success rate (measured by the ability to maintain one's newly achieved status for years) for reparative therapy and for weight-loss programs is low.
Thus, on top of everything else, offering people in the two groups the hope of a "cure" for their status often represents a kind of fraud: even if they want to do so, few manage to escape for any length of time from membership in either class. It might therefore seem best to offer people acceptance rather than moral and medical judgments and efforts to change them, given the suffering that the latter inevitably cause.
Fourth, some people propose that there is a "gay" gene, and others propose that there is a genetic tendency toward obesity. It does appear that having a gay person in the family increases the odds that others in the family will be gay as well. And similarly, it appears that overweight parents commonly raise overweight children. All of this may be the result of either environment/nurture or some combination of genes and environment, but it is at least possible that genetics contribute to one's status as gay or overweight, perhaps another reason to treat efforts to "change" that status as bound to fail and as potentially invidious. When something is genetic, it seems to be outside of our control, and both sexual orientation and weight may arguably fall into this category.
Fifth, both sex and eating are pleasurable activities that are intimately (through biology and chemistry) connected to evolution's mandate to survive and reproduce. Without sex (and absent assisted reproduction), one's genes must perish, and without food, one's life must end. It is accordingly tempting, perhaps, for people to look unfavorably upon sexual practices that necessarily cannot lead to reproduction and to dietary practices (like eating more than necessary or indulging in highly rich food) that does not help to prolong life. In response to this temptation, people may be inclined to say that majority sexual and eating practices are "normal" -- not only in the sense that they are shared by a majority but in a normative sense as well, while minority sexual and eating practices are "abnormal."
Sixth and finally, people have drawn negative inferences from facts about sexual orientation as well as from facts about weight. Stereotypes about gay people abound, though our society has made tremendous progress in that department just in the last 25 years. And stereotypes of overweight people persist -- such people, the stereotype holds, are impulsive, exercise little self-control, may be less intelligent than others, and are undisciplined in various areas of life.
Sex discrimination also finds expression in the treatment of people in these two groups: men are expected to "act like men" and are thus viewed less favorably if they are "effeminate" or otherwise fail to live up to the masculine ideal (which may include attraction to women); and women are supposed to be extremely (and unhealthfully) thin, an ideal emphasized by the shape of fashion models and famous actresses. Thus norms about sexual orientation and weight tend to interact with norms about maleness and femaleness that aggravate existing inequities that accompany gender non-conformity.
For all of these reasons, one might find persuasive the analogy between efforts to sell "weight loss" and efforts to sell "reparative therapy." I'll say one skeptical thing in parting, which is that just because two groups of people may both suffer societal mistreatment of varying degrees does not necessarily mean that efforts to "change" people within the two groups is equally invidious. Being "different" often triggers judgment, but some kinds of difference are fine, and others threaten the wellbeing of those who are different. Discerning the distinction may provide a path to deciding when medical professionals engage in benign interventions and when the professionals simply fortify the dominant culture's persecution of a minority. Rather than offering rebuttal here, however, I'll leave these arguments above as they are and encourage readers to comment on whether or not they find the arguments convincing.