Queer(ed) Risks: Life Insurance, HIV/AIDS, and the ‘Gay Question’

DOIhttp://doi.org/10.1111/j.1467-6478.2010.00524.x
Publication Date01 December 2010
Date01 December 2010
AuthorNeil Cobb
JOURNAL OF LAW AND SOCIETY
VOLUME 37, NUMBER 4, DECEMBER 2010
ISSN: 0263-323X, pp. 620±50
Queer(ed) Risks: Life Insurance, HIV/AIDS,
and the `Gay Question'
Neil Cobb*
In 2004 the Association of British Insurers (ABI) issued its second
Statement of Best Practice on HIV and Insurance. This prohibited use
of the `gay question' (employed by some underwriters in application
forms for life insurance to identify heightened risk of infection with
HIV), in response to growing criticism that the practice was actuarially
unreliable, unfair to gay men, and unnecessary, given the availability
of alternative `behaviour-based' risk criteria. While the overhaul of
this controversial practice is clearly a victory for gay (male) identity
politics, this paper argues that the interests of gay men seem to have
dominated at the expense of a more far-reaching critique of the
industry's evaluation of infection risk. It contends that a more radical
(or `queerer') challenge is needed which can better understand and
address the injustices created by criteria for appraising risk of
infection that still remain in place.
INTRODUCTION
Three decades ago most commercial insurers in the United Kingdom
responded to the developing AIDS crisis by actively discriminating against
gay and bisexual men who applied for life insurance products. They did so
primarily by basing underwriting decisions upon what became known as the
`gay question' on insurance application forms. Discrimination against gay
people is usually justified on the ground of moral or religious objection to
620
ß2010 The Author. Journal of Law and Society ß2010 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Durham Law School, 50 North Bailey, Durham DH1 3ET, England
n.a.cobb@dur.ac.uk
This article has greatly benefited from recent opportunities to discuss my ideas: at a
seminar for the staff of York Law School, in February 2009, and at the Law and Society
Association Meeting in Denver, Colorado, in May 2009. The latter was made possible by
an Overseas Travel Grant from the British Academy. Thanks to Fiona Hale, Erika
Rackley, Jenny Steele, and Ruth Wilkinson for their thoughtful comments on earlier
drafts, and to the two anonymous referees from the Journal of Law and Society.
same-sex desire or conduct. The gay question was derived instead from
purportedly technical, actuarial claims about the greater risk of infection
with HIV that they faced. This risk-based inequality faced by gay men was
dramatically addressed, however, in the early years of the twenty-first
century. In 2004, the gay question was abandoned by the Association of
British Insurers (ABI), which prohibited all underwriting based upon an
applicant's sexual orientation.
1
Its decision preceded, by several years,
formal measures to outlaw discrimination of this kind by service providers. It
was justified on the basis that sexual orientation was an inaccurate, unfair,
and unnecessary proxy for evaluating the risk of HIV infection.
The industry-wide prohibition of the gay question is undoubtedly a
victory for gay and bisexual men. Indeed, it demonstrates, as this paper
suggests, the positive influence of the rapid `mainstreaming' of gay equality
in recent decades, which has crystallized the position of the `gay community'
as a potentially profitable consumer market for insurance products, rather
than simply a source of risk to be managed.
2
The main aim of this paper,
however, is to consider the limitations of this apparent victory for the sexual
politics of HIV conceived more broadly than the interests of gay men alone.
The ABI continues to sanction various alternative forms of underwriting
HIV in its latest Statements of Best Practice on HIV and Insurance. These
classifications depend upon crude `common-sense' claims about the risk of
infection within formal relationships such as marriage and civil partnership,
and are structurally racist in their effects, because they implicitly target, and
disproportionately affect, immigrant populations from `high-risk' countries.
They also threaten to set back the effective clinical engagement with the
effects of STDs, by permitting insurers to breach the confidential
relationship between GPs and patients.
The absence of an adequate critique of these other aspects of HIV
underwriting is especially worrying because it is, in my view, symptomatic
of wider failings within the sexual politics of HIV. The terms of the debate
around the ethics of underwriting in this area have been defined by the
politics of gay (male) identity, which reflects the important established
organizational role of gay men in shaping the parameters of AIDS activism
more generally. The problem with identity politics, however, is that it
precludes consideration of the wider sexual exclusions created by human
responses to HIV beyond the bounds of gay identities, and in its urge to
621
1 Policy first published in the 2004 ABI Statement of Best Practice on HIV and
Insurance (`ABI Statement (2004)', on file with author); the latest (2008) version
(`ABI Statement (2008)') is at .
2U.Vaid, Virtual Equality: The Mainstreaming of Gay and Lesbian Liberation
(1996). I borrow the concept of `mainstreaming' from Vaid to describe the
normalization of the politics of gay recognition. As I demonstrate later, like Vaid, I
too am critical of the possible political constraints this mainstreaming imposes upon
more radical politics of sexuality, especially relating to HIV/AIDS.
ß2010 The Author. Journal of Law and Society ß2010 Cardiff University Law School

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