Deborah L. Rhode, The Injustice of Appearance

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“It hurts to be beautiful”is a cliché I grew up with.”It hurts not to be beautiful”is a truth I acquired on my own. But not until finishing the research that led to this Article did I begin to grasp the cumulative cost of our cultural preoccupation with appearance. Over a century ago, Charles Darwin concluded that when it came to beauty,”[n]o excuse is needed for treating the subject in some detail.”1 That is even truer today; our global investment in appearance totals over $200 billion a year.2 Yet when it comes to discrimination based on appearance, an excuse for discussion does seem necessary, particularly for a legal scholar. Given all the serious problems confronting women:rape, domestic violence, poverty, child care, unequal pay, violations of international human rights:why focus on looks? Most people believe that bias based on beauty is inconsequential, inevitable, or unobjectionable.3

They are wrong. Conventional wisdom understates the advantages that attractiveness confers, the costs of its pursuit, and the injustices that result. Many individuals pay a substantial price in time, money, and physical health. Although discrimination based on appearance is by no means our most serious form of bias, its impact is often far more invidious than we suppose. That is not to discount the positive aspects of beauty, including the pleasure that comes from self-expression. Nor is it to underestimate the biological role of sex appeal or the health and fitness benefits that can result from actions prompted by aesthetic concerns. Rather, the goal is to expose the price we pay for undue emphasis on appearance and the strategies we need to address it.

What makes this issue so important is both our failure to address it and the unwillingness of so many legal scholars and policy makers to take that failure seriously. Of all the problems that the contemporary women’s movement has targeted, those related to appearance have shown among the least improvement. In fact, by some measures, such as the rise in cosmetic surgery and eating disorders, our preoccupation with attractiveness is getting worse. Yet many commentators see discrimination based on appearance as inevitable and inappropriate for legal prohibition.

This Article, by contrast, argues that discrimination based on appearance is a significant form of injustice, and one that the law should remedy. Part I explores the importance of appearance and the costs of discrimination on that basis. Part II develops the rationale for prohibiting such discrimination. Part III reviews the limitations of prevailing civil rights laws concerning appearance and provides the first systematic research on the small number of state, local, and international laws that explicitly prohibit some forms of discrimination based on appearance. Part IV concludes with legal, policy, and cultural strategies to reduce the price of prejudice.

1.CHARLES DARWIN, THE DESCENT OF MAN AND SELECTION IN RELATION TO SEX 578 (Robert Maynard Hutchins ed., Encyclopaedia Britannica 1952) (1871).
2.See infra Part I.D.
3.See GORDON L. PATZER, THE PHYSICAL ATTRACTIVENESS PHENOMENA 5 (1985) (discussing popular misconceptions).

Read the article here. Deborah Rhode is a fantastic Feminist Law Prof., and a bona fide shero to a lot of people, me included.

–Ann Bartow

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