Though uneven costs based on an arbitrarily selected physical feature might seem discriminatory, health insurance fat taxes are perfectly legal under federal law. The Americans with Disabilities Act of 1990 (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) generally do not protect people because of their fatness. The recently enacted Patient Protection and Affordable Care Act of 2010 (ACA) also allows, and encourages, this new regime to continue, under the guise of wellness programs. Ironically, despite the name, these programs do not necessarily measure wellness, nor are they required to do so. The legality of health insurance fat taxes generates another set of questions, namely, why the law functions in this particular way and whether it should function differently. This Article posits that the current functionality reflects a different type of covering, by which society forces itself to make certain of its underlying identities—in this case, anti-fat bias—a little less obvious. While this is not the individualized covering Professor Yoshino originally discussed, this Article attempts to expand upon that conception. As a whole, society avoids admitting that its shortcomings, such as anti-fat bias, exist. Collective society pushes to cover its collective flaws. Specifically, systemic fear of fatness and losing the currency ascribed to thinness allows the law to permit and promote the existence and expansion of this new regime. Health insurance fat taxes exemplify the concept of what will be termed herein collective cover-up. Part II explores fatness and health insurance, focusing on the contrast between the traditional communitarian health care model and health insurance fat taxes. This Part also details various health insurance fat tax programs either implemented or proposed across the country. Part III critiques the science of fatness, manifested through BMI, and the construction of fatness as a disease. Part IV discusses the systemic implications of fatness and draws certain parallels between social treatments of fatness and queerness. These parallels provide a useful basis for applying Professor Yoshino’s covering theory to fatness. Part V examines legal regimes that generally seem as if they might prohibit the anti-fat discrimination of health insurance fat taxes, but do not. Using these legal regimes as a lens, Part V then explores the expansion of covering to the whole of society and the ways in which fatness begets collective cover-up. Finally, Part VI offers some concluding thoughts and questions about how the law might push social norms such that anti-fat discrimination could become less pervasive and public health goals might be better achieved.
Rebecca L. Rausch,
90 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol90/iss4/2