Judge lifts military limit on members serving with HIV
In a landmark ruling, a federal court ordered the Department of Defense to end a longstanding Pentagon policy that forbids enlisted service members from deploying outside the continental United States and returning to service. become officers if they have HIV.
Proponents hail it as an overdue legal affirmation that people receiving effective antiretroviral therapy for HIV are essentially healthy and pose no risk to others.
The ruling overturned one of the country’s last major pillars of HIV-related employment discrimination. Federal law for decades has prohibited employers from discriminating against people living with HIV under the Americans with Disabilities Act of 1990. The military has stood alone as the sole US employer. perpetuating such clearly discriminatory practices.
“This is one of the largest rulings for people living with HIV and subject to their Constitutional protections in decades,” said Kara Ingelhart, senior attorney at Lambda Legal, the firm with a team Private practice attorneys suing the case said.
The Pentagon still prohibits people living with HIV from joining the military or from being discharged from military academies. The new ruling, which could affect other restraining orders, concerns serving members diagnosed after they enlist.
U.S. District Judge Leonie Brinkema of East Virginia ruled Wednesday in two cases, Harrison v. Austin, and Roe & Woe v. Austin, in which three men sued the military for HIV-related discrimination . The Air Force attempted to remove the two pseudonymous plaintiffs, while the DC Army National Guard denied Sergeant. Nick Harrison on a committee in the Judicial Counseling General’s Corps, or JAG Corps, because they have HIV.
Brinkema has ruled that the Pentagon’s policy of treating HIV as a chronic disease requiring an exemption is scientifically outdated and that it unfairly treats people with the virus differently than other service members. are living with a chronic health condition that requires regular medication.
“This is the first decision to ensure that the rights of people living with HIV are rooted in the equal protection clause of the Constitution,” said Scott Schoettes, a former Lambda attorney in private practice in Chicago. .
Brinkema, who was appointed by President Bill Clinton in 1993, ordered the Air Force to cancel the discharge of two pilots. She also ordered the Army to cancel and review the denial of Harrison’s JAG application.
According to the ruling, the Pentagon can no longer use the virus as a reason to discriminate against asymptomatic HIV-positive service members whose viral load is undetectable through treatment. with antiviral drugs. In particular, the Pentagon may not separate, reject, or deny deployment applications from such persons.
The Justice Department can appeal the decision to the US Fourth Circuit Court of Appeals. In January 2020, the court upheld the preliminary injunction in the case of the two pilots, preventing the Air Force from discharging them while their case was filed.
President Joe Biden’s 2020 campaign platform includes a measure to support the right of people living with HIV to serve fully in the military. Ingelhart expressed hope that the administration would force the Pentagon to reverse its discriminatory policies based on remaining HIV status.
The Department of Defense is the largest employer agency in the world, with 3 million members serving worldwide.
The Pentagon has referred questions to the Justice Department, which declined to comment.
In defense of the two cases, the military argued that members serving with HIV pose a theoretical risk to others, such as on the battlefield.
After the Pentagon appealed the ban on Track 4 in 2019, a group of former military leaders submitted a summary of sentiments in support of the plaintiffs. The brief was criticized as scientifically outdated, the Pentagon’s policy of treating HIV as a chronic disease that should be waived, and arguing that the policy had compromised military readiness.
Effective HIV drugs have been on the market since 1996. Today, HIV is usually treated with pills taken once a day.
Scientists have known for decades that HIV cannot be transmitted by casual contact. Extensive research led the global HIV scientific community to conclude in the late 2010s that people with undetectable viral loads on HIV treatment cannot transmit the virus sexually.
According to Lambda Legal, nearly all of the approximately 2,000 members of the US military living with HIV have undetectable viral loads.
Today, people receiving HIV treatment have a near-normal life expectancy.
“The military is being forced to acknowledge the current science of HIV: It is easily treatable; there are no documented cases of combat transmission; and most importantly, it is never an excuse to discriminate,” said Sarah Warbelow, legal director of the Human Rights Campaign, who was not involved in the lawsuit.
Harrison, 45, of Oklahoma, enlisted in the military in 2000, was diagnosed with HIV in 2012 after he returned from a duty trip in Kuwait. In May 2018, he sued the Army and Department of Defense for rejecting his application to become a military attorney with the JAG Corps.
Harrison said of the judge’s decision: “It’s been great to see the court making a decision to put science above stigma.
In December 2018, Harrison’s legal team sued the Air Force and Department of Justice on behalf of two pilots who received discharge notices because their HIV status prevented their potential deployment to China. Winter.
The policy, codified in a February 2018 memo and named “Implement or Quit,” caused outrage in the HIV community by forcing some HIV-positive service members out. from the military, not a common practice before, if they are faced with a potential deployment.
Harrison said he keeps in touch with two other plaintiffs, as well as a subset of HIV-positive members of the military. “We look forward to the opportunity to move on with our lives and continue serving the military in the best possible way,” he said.
His lawyers also sued the Navy and Air Force representing a pair of cadets who were barred from joining the military after graduating from a military academy because they were HIV positive. Deese and Doe v. Austin, pending in the US District Court for the District of Maryland, is in the discovery phase after the court denied the Pentagon’s dismissal request.
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