Bareback sex, PrEP, National AIDS Trust v NHS England and the reality of gay sex

Abstract

In this article, I use empirical data regarding the prevalence of bareback sex and the HIV treatment PrEP to argue that the High Court and Court of Appeal of England and Wales in National AIDS Trust v NHS England, have reflected the reality of gay sex. I argue that this case represents a shift in legal approaches to preventative sexual health methods that recognises the reality of gay male sexuality regarding the allocation of funding responsibility for the pre-exposure prophylaxis. I argue that the treatment, which prevents transmission of HIV, is a significant feature of gay and bisexual men’s sexuality and has the potential to transform narratives surrounding personal agency and individual responsibility. This article uses doctrinal, theoretical and empirical analysis, to the conclusion that the case represents a significant step in the recognition of the reality of gay sex.