Judge rules US military can’t discharge HIV-positive troops

ABOVE: Staff Sergeant Nick Harrison D.C. Guard. Photo via Lambda Legal.

RICHMOND, Va. (AP) | U.S. service members who are HIV-positive cannot be discharged or barred from becoming an officer solely because they’re infected with the virus, a federal judge in Virginia ruled. Advocates say it’s one of the strongest rulings in years for people living with HIV.

The cases involved two service members that the Air Force attempted to discharge, as well as Sgt. Nick Harrison of the D.C. Army National Guard, who was denied a position in the Judge Advocate General (JAG) Corps.

U.S. District Judge Leonie Brinkema said in a written order dated April 6 that her ruling bars the military from taking those actions against the plaintiffs and any other asymptomatic HIV-positive service member with an undetectable viral load ”because they are classified as ineligible for worldwide deployment … due to their HIV-positive status.”

Peter Perkowski, an attorney for the plaintiffs, called it “a landmark victory – probably the biggest ruling in favor of people living with HIV in the last 20 years.“

“The military was the last employer in the country that had a policy against people living with HIV. Every other employer – including first responders – is subject to rules that prohibit discrimination based on HIV status,” he said.

The Department of Defense did not immediately respond to an emailed request seeking comment on the ruling or whether it intends to appeal.

The airmen, identified by pseudonyms in the 2018 lawsuit, argued that major advancements in treatment mean they can easily be given appropriate medical care and present no real risk of transmission to others.

In 2020, the Richmond-based 4th U.S. Circuit Court of Appeals upheld a preliminary injunction barring the discharge of the airmen. In its ruling, the three-judge panel said the military’s rationale for prohibiting deployment of HIV-positive service members was “outmoded and at odds with current science.” The appeals court ruling left the injunction in place while their lawsuit was being heard.

The Department of Justice argued before the 4th Circuit that the Air Force determined the two airmen could no longer perform their duties because their career fields required them to deploy frequently and because their condition prevented them from deploying to the U.S. Central Command’s area of responsibility, where most airmen are expected to go. Central Command, which governs military operations in the Middle East, North Africa and Central Asia, prohibits personnel with HIV from deploying without a waiver.

The DOJ acknowledged that treatment lowers the risk of transmitting HIV, but said the risk is amplified on the battlefield where soldiers can often come into contact with blood.

An attorney for the airmen argued during a 2019 hearing that the odds of transmitting HIV in combat are infinitesimal and should not limit their deployment or lead to their discharge.

In its written ruling, the 4th Circuit panel said a ban on deployment may have been justified at a time when HIV treatment was less effective at managing the virus and reducing the risk of transmission.

“But any understanding of HIV that could justify this ban is outmoded and at odds with current science. Such obsolete understandings cannot justify a ban, even under a deferential standard of review and even according appropriate deference to the military’s professional judgments,” Judge James Wynn Jr. wrote in the unanimous 2020 ruling.

Brinkema said in this month’s written order that she had temporarily sealed her ruling in the case to give both sides a chance to seek redactions within 14 days. The judge ordered the secretary of the Air Force to rescind the decision to discharge the two airmen and ordered the Army to rescind its decision denying Harrison’s application to commission into JAG, and to reevaluate those decisions in light of her ruling.

Kara Ingelhart, senior attorney at Lambda Legal, one of the groups that brought the lawsuits, said in a news release that the ruling knocks down a barrier to preventing people living with AIDS from becoming officers, and “brings an end to the military’s ongoing discrimination against the approximately 2,000 service members currently serving while living with HIV.”

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