oa The right to underwrite gender

When does gender-based differentiation in insurance practice constitute discrimination? In life insurance, gender is used as a primary factor in risk selection. Private life insurance has long been a tool of inclusion and exclusion of clients via its process of risk selection and distributive mechanisms, which creates a series of questions relating to biological classification, difference, equality, discrimination, solidarity, and governance. The realm of insurance medicalises gender by treating it as a statistical factor in determining longevity, differential disease susceptibilities, and even treatment outcomes. In this article, the authors examine whether differentiation based on a sex/gender system constitutes discrimination under European Union law. Specifically, this article covers the Goods & Services Directive (2004/113), commonly referred to as the ‘Gender Directive’, which was adopted in 2004 and implemented by all EU member states before 2007. By examining EU documents, insurance trade journals, presentations, joints responses, and recommendations from equality and consumer groups from 2004-2014, this article examines the effects of the European Court of Justice (ECJ) ruling and ensuing European Commission guidelines from Case C- 236/09 Test-Achats (2011-2012) regarding gender-based risk-rating practices in private insurance pricing. In its ruling, the ECJ invalidated Article 5(2) of the Gender Directive per 21 December 2012, raising renewed questions as to how gender should be used by insurers in their actuarial tables and underwriting assessments, especially when deciding whether to reject or accept applicants. It further contextualises this information in EU non-discrimination law and assesses trends of favouring lifestyle factors over biological traits.