Dwarf tossing is believed to have originated in Australia in the early to mid-1980s and arrived in America soon after. (It makes an appearance as a symbol of financial-sector excess in the 2013 film “The Wolf of Wall Street.”) Florida banned the practice in 1989, and New York followed suit in 1990. “Any activity which dehumanizes and humiliates these people is degrading to us all,” New York Gov. Mario Cuomo said at the time.
In 1991, when the Paris suburb of Morsang-sur-Orge banned dwarf tossing at discotheques, Manuel Wackenheim, a little person, sued because he wanted to continue making a living being tossed. France’s highest administrative court upheld the ban in 1995, stating that dwarf tossing “affronted human dignity.” The United Nations Human Rights Committee upheld the decision in a 2002 ruling on similar grounds. The Wackenheim case has since appeared in legal ethics journals and textbooks. (Wackenheim, now 51, lives in Sarreguemines on the French-German border and earns a living repairing computers. “People did not really understand the show,” he said in an email, referring to his dwarf-tossing days. “There are people who found it a little degrading, but for me this had made it all the more daring.”)
Rao — currently the administrator of the White House’s Office of Information and Regulatory Affairs — strongly disagreed with these rulings. She wrote about the issue in journal articles and, in a 2011 post on the legal blog Volokh Conspiracy, argued that the case “demonstrates how a substantive understanding of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity irrespective of their individual choices.” In short, Rao contended that the ban denied little people legal agency and an opportunity to make money. She drew parallels to prostitution and pornography.
That year, then-Florida state Rep. Ritch Workman proposed repealing his state’s dwarf-tossing ban — and was promptly ridiculed on “The Colbert Report” and “Jimmy Kimmel Live.” He eventually dropped the idea.
In January 2012, millions of people in the United States and beyond were briefly schooled on dwarf tossing when Peter Dinklage, during his acceptance speech for a Golden Globe for best supporting actor (for “Game of Thrones”), instructed viewers to “Google” Martin Henderson. Henderson, an actor and little person like Dinklage, was paralyzed in 2011 after being picked up and thrown against his will by a drunk stranger — who was widely believed to be mimicking English rugby players who had recently participated in a dwarf-tossing event in New Zealand. Henderson would go on to die of complications from the attack in 2016. Advocates of bans on dwarf tossing worry that Henderson’s story could be repeated, and that controlled activities could easily spread from the bar to the street.
After Rao’s nomination to the D.C. Circuit Court, the nonprofit advocacy group Little People of America sent a strongly worded letter to Charles Grassley, then chairman of the Senate Judiciary Committee, and ranking Democrat Dianne Feinstein, opposing her confirmation. “We vehemently disagree with Ms. Rao’s view that banning dwarf tossing negates individual’s dignity,” the group wrote. “We strongly support our community in having individual choice in every aspect of their lives and we advocate for equal employment opportunities so that our community need not be constrained to earning a living by being the recipient of a dehumanizing and injurious activity.”
Michelle Kraus, advocacy director for Little People of America, says dwarf-tossing bans are important in little people’s effort to assert a regular place in society: “We are not characters. We are real people with real jobs, with real families, with real concerns,” Kraus told me. “It’s not about taking away people’s agency or people’s possibilities for supporting themselves but really expanding what is available and not to kind of perpetuate the stereotype of this caricature.” Rebecca Cokley, director for disability policy at the liberal think tank Center for American Progress and a little person, wrote for Rewire.News: “The fact that Trump is nominating Rao to any position, let alone a judicial appointment to a bench that is often seen as the proving ground for the U.S. Supreme Court, literally puts the safety and security of people like me directly in the crosshairs.”
Liberal and conservative magazines have chimed in on the controversy as well. “Dwarf-tossing is an odd cause for a federal judicial nominee to champion,” wrote Stephanie Mencimer in Mother Jones in November. “Even weirder, Rao has invoked it repeatedly in her writing to make the case that a misguided focus on human dignity is leading US courts to run afoul of the Constitution in decisions that advance LGBT rights and racial equality.” The R Street Institute’s Shoshana Weissmann pushed back, writing for Reason that Rao’s argument is that “one can disagree with another’s choices, but dignity is about the right to make those choices instead of having the government make them for us.”
Advocates for little people appear overwhelmingly in favor of banning dwarf tossing. However, there are dissenters such as “Mighty” Mike Murga, an actor and performer who regularly participates in dwarf-tossing events at bars, house parties and strip clubs in Michigan. Trained in Olympic-style wrestling, weightlifting, bodybuilding and “circus arts” including acrobatics and fire breathing, Murga feels that dwarf tossing is like a lot of contact sports. “This is like football. This is like basketball. This is like hockey,” Murga told me. In dwarf tossing, “the impact is hitting the mattresses from the top. In those sports, the impact is the other player pushing or hitting you, shoving you over, and you falling to the ground. So this is the same resistance.”
Murga, who has appeared in the television series “American Horror Story” and toured with Motley Crue and Britney Spears, notes that little people do face a higher risk of injury than others. Still, he says, with proper safety equipment and a lot of personal training, he’s able to be tossed safely. “I do bodybuilding and I power lift. I lift weights. I push my body around pretty gruesomely to do these stunts,” Murga says. “This is just another stunt. And then I just learned to make a living at it and make hundreds of people happy watching it happen.”
For now, Florida and New York remain the only states that ban dwarf tossing, although Washington state lawmakers are considering outlawing it. And so, whether or not Rao gets confirmed, the debate appears far from over.
Scott Nover is a writer in Washington.