Sasha Borissenko: NZ falls short on human rights for overweight people

Physical size is not included in the list of grounds for discrimination in New Zealand's Human Rights Act. Photo / 123rf

OPINION

Headlines the world-over reference Hāpai te Hauora’s 2021 report saying overweight and obesity-related conditions cost $2 billion a year - almost 8 per cent of the country’s health care spending.

But, scratch the surface and you’ll find those costs account for conditions that are associated with and not caused by “obesity”. The two are linked and what’s often forgotten in public consciousness around “health” and weight are genetic disposition, basic physiology, socio-economic status, age, race, and the food environment.

Rather, the same report says indirect costs relating to loss of opportunity and weight discrimination could be anywhere up to $7b.

A 2021 meta-analysis looked at 41 studies that highlighted explicit and implicit weight discrimination among health professionals. Fat patients experienced patronising and disrespectful treatment, with all health issues being attributed to weight. More than half of patients avoided, delayed, or cancelled appointments.

Physical size and the Human Rights Act

While New Zealand lacks data relating to incidents of weight discrimination, there have been seven complaints made to the Human Rights Commission since 2017. Between 2008 and 2011, the commission was approached almost 50 times alleging weight discrimination in a goods and services and employment setting.

For context, a Federal Reserve Bank of St. Louis study estimated fat women earned between 4-12 percent less than their thinner counterparts.

The thing is, physical size isn’t included in the list of grounds in the Human Rights Act.

Section 21 lists sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origin, disability, age, political opinion, employment status, family status, and sexual orientation. Human rights claims to the Human Rights Tribunal can be turbulent for claims with no connection to the prohibited grounds.

If it were to be included, discrimination would be unlawful in employment (including procurement and voluntary work), government services, business partnerships, access to places, vehicles and facilities, in provision of goods and services, housing and other accommodation, and in education.

The Women’s Health Action Trust called to include weight discrimination as a prohibited ground under the Human Rights Act in 2013, citing the right to health and work as per New Zealand’s ratification status of the Universal Declaration of Human Rights.

There’s also the United Nations Declaration on the Rights of Indigenous Peoples, which has also been ratified in Aotearoa.

It could be argued colonisation, which combined with economic deprivation, the globalisation of ultra-processed foods, and racism explain the disproportionate over-representation in weight-related population statistics.

A 2015 paper framed the high rates of fatness among Māori as a health disparity and thus a breach of the Treaty of Waitangi. The authors argued, “the recognition of Māori rights as indigenous peoples in the Treaty of Waitangi includes the benefits guaranteed to all citizens. This places responsibility on the NZ Government to ensure that Māori have at least the same standard of health as non-Māori”.

In theory, Māori could bring fat discrimination claims before the Waitangi Tribunal.

Claims on the grounds of disability

Arguably, there’s an avenue to pursue human rights claims on the grounds of disability, given everyday barriers, and oppressive built environments - seating, hospital gowns, and suitably-sized medical equipment, for example.

This has been successfully argued in Canadian jurisdictions, but in most successful cases, it was due to the employer perceiving the plaintiff’s weight as a disability rather than the plaintiff arguing their weight was an actual disability.

But this is fraught with tension from both the fat and disabled communities.

In a paper by the late Cat Pausé, she said “fat people, though, often reflect the label of being disabled, for a multitude of reasons including the conceptualisation of disability as being synonymous with severe physical impairments/limitations; the belief that fatness is mutable; and the further stigmatisation they believe it may bestow”.

New Justice Minister Ginny Andersen said while weight isn’t explicitly included under the Human Rights Act, it may extend to weight in some circumstances.

“Any future review of the Human Rights Act could include consideration of the prohibited grounds of discrimination. Such a review would require significant policy work and is not currently part of the Government work programme.”

Further afield

Given Aotearoa’s failure to recognise weight discrimination in the Human Rights Act, let’s look further afield. San Francisco, Washington State, and Michigan in the US, Victoria in Australia, and the city of Iceland’s Reykjavik are among the few jurisdictions that prohibit weight discrimination.

In May this year, New York City Mayor Eric Adams signed an ordinance banning discrimination on the grounds of weight and height. Adams said at the time: “science has shown that body type is not a connection to if you’re healthy or unhealthy [...] I think that’s a misnomer that we’re really dispelling.”

Sasha Borissenko writes about the legal sector and is also the host of a new podcast called Chewing the Facts with new episodes out every Sunday. Produced with the NZ Herald, with support from NZ On Air.

You can follow the podcast at iHeartRadio, Apple Podcasts, Spotify, or wherever you get your podcasts.