Stereotypic Alchemy: Transformative Stereotypes and Antidiscrimination Law

Abstract

As the legal mechanisms supporting the antidiscrimination principle have developed, a system of heightened judicial protection for disempowered minorities or "suspect classes" has emerged as a powerful tool. Legally recognized suspect classes include classes defined by the characteristics of race, ethnicity, and, to somewhat lesser extents, gender, alienage, and illegitimacy. American law has made great strides in recognizing and protecting suspect classes defined by a single characteristic (such as race), and also in protecting "double-suspect classes," that is, classes defined by a combination of suspect characteristics (such as race and gender). A significant problem still remains, however, regarding the appropriate legal response to cases that involve a combination of suspect and non-suspect characteristics. For example, a claim of discrimination against overweight women would involve a combination of gender, a suspect characteristic, and weight, a non-suspect characteristic. The thesis of this Current Topic is that an ostensibly non-suspect characteristic may be transformed, through a process of stereotyping, into a vehicle for discrimination against a suspect class. For instance, stereotypic images of women may dictate a narrower range of acceptable body weights for women than for men, and women whose weight exceeds the acceptable range may suffer a form of stigmatization distinct from that suffered by overweight men. In such a case, the non-suspect characteristic, weight, is transformed into a discriminatory criterion.