Tuesday, January 31

Judge strikes down military’s limits on service members with HIV

In a landmark ruling, a federal district court has ordered the US Department of Defense to end a longstanding Pentagon policy forbidding enlisted military service members from deploying in active duty outside the continental United States and being commissioned as officers if they have HIV.

Supporters hailed it as an overdue legal affirmation that people receiving effective antiretroviral treatment for HIV are essentially healthy and pose no risk to others.

The judgment topples one of the nation’s last major pillars of HIV-related employment discrimination. Federal law has for decades barred employers from discriminating against people with HIV under the Americans with Disabilities Act of 1990. The US military has stood alone as the sole US employer maintaining such explicit discriminatory practices.

“This is one of the biggest rulings for people living with HIV and enshrining their protections under the Constitution in decades,” said Kara Ingelhart, a senior attorney at Lambda Legal, which along with a team of private-practice attorneys litigated the cases in question .

Nick Harrison.Lawful Lambda

The Pentagon does still ban people with HIV from enlisting in the military or from being commissioned out of military academies. The new ruling, which could impact those other prohibitions, concerns service members diagnosed after entering the military.

District Court Judge Leonie Brinkema of the Eastern District of Virginia ruled Wednesday regarding the two cases, Harrison v. Austin and Roe & Woe v. Austin, in which a trio of men sued the US military for HIV-related discrimination. The Air Force attempted to discharge two pseudonymous plaintiffs, while the DC Army National Guard denied Sergeant Nick Harrison a commission in the Judge Advocate General’s Corps, or JAG — in all three cases because the service members had HIV.

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Brinkema ruled that the Pentagon’s policy qualifying HIV as a chronic condition requiring a waiver was scientifically outdated and that it unfairly treated people with the virus differently from other service members living with chronic health conditions requiring routine medication.

“This is the first decision securing the rights of people living with HIV that is rooted in the equal protection clause of the Constitution,” said Scott Schoettes, a former Lambda attorney in private practice in Chicago and co-counsel of the two cases.

Brinkema, who was appointed by President Bill Clinton in 1993, has ordered the Air Force to rescind the discharges of the two Airmen. She further ordered the Army to rescind its denial of Sergeant Harrison’s JAG application and to reconsider it.

Under the ruling, the Department of Defense can no longer use the virus as a reason to discriminate against asymptomatic HIV-positive service members whose viral load is undetectable thanks to antiretroviral treatment. In particular, the department may not separate, discharge or deny applications from such individuals for deployment.

The Department of Justice could appeal the ruling to the US Court of Appeals for the Fourth Circuit. In January 2020, the same court upheld a preliminary injunction in the case concerning the two Airmen, blocking the Air Force from discharging them while their case was litigated.

President Joe Biden’s 2020 campaign platform included a measure supporting the right of people with HIV to serve fully in the military. Ingelhart expressed hope that the administration will compel the Pentagon to reverse the remaining military policies that discriminate based on HIV status.

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The Department of Defense is the world’s largest employer, with some 3 million service members working worldwide.

Reached for comment on the ruling, the Pentagon referred questions to the Department of Justice, which declined to comment.

In defending the two cases, the US military argued that service members with HIV pose a theoretical risk to others, such as on the battlefield.

After the Department of Defense appealed the injunction to the Fourth Circuit in 2019, a group of former military leaders filed an amicus brief supporting the plaintiffs. The brief criticized as scientifically outdated the Pentagon’s policy qualifying HIV as a chronic condition requiring a waiver and argued that the policy compromised military readiness.

Effective antiretroviral treatment for HIV has been on the market since 1996. Today, HIV is typically treated with a single once-a-day pill.

Scientists have known for decades that HIV cannot be transmitted through casual contact. Extensive research led the global HIV scientific community to conclude during the late 2010s that people with an undetectable viral load thanks to HIV treatment cannot transmit the virus through sex.

According to Lambda Legal, nearly all the approximately 2,000 US military members living with HIV have an undetectable viral load.

Today, people treated for HIV have a near-normal life expectancy.

“The military is being forced to acknowledge the current science regarding HIV: It is easily treatable; there are zero documented cases of transmission in combat; and, most importantly, it is never a reason for discrimination,” said Sarah Warbelow, legal director of the Human Rights Campaign, who was not involved with the litigation.

Sergeant Harrison, 45, an Oklahoma native who joined the military in 2000, was diagnosed with HIV in 2012 after returning from a tour of duty in Kuwait. In May 2018, he sued the Army and the Department of Defense for denying his application to become a military lawyer with JAG.

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“It’s nice to see the court make a decision placing science over stigma,” Harrison said of the judge’s ruling.

In December 2018, Harrison’s legal team further filed suit against the Air Force and the Department of Justice on behalf of two Airmen who received notifications discharging them from service because their HIV statuses prevented their potential deployment to the Middle East.

This policy codified in a February 2018 memorandum and dubbed “Deploy or Get Out,” outraged the HIV community by forcing some HIV-positive service members out of the military, not previously a common practice, if they faced potential deployment.

Harrison said he keeps in touch with the other two plaintiffs as well as a collection of fellow HIV-positive members of the military. “We’re looking forward to the opportunity to go forward with our lives and to continue to serve the military in the best way possible,” he said.

His lawyers have also sued the Navy and Air Force on behalf of a pair of cadets blocked from commissioning in the military following their military-academy graduations due to having HIV. The case, Deese and Doe v. Austin, is pending in the US District Court of the District of Maryland and is currently in the discovery phase after the court denied the Department of Defense’s request for a dismissal.

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