Federal Judges Rules That US Military Can No Longer Discharge HIV-Positive Service Members

A federal district judge has ruled that HIV-positive U.S. service members cannot be discharged or barred from becoming officers solely because they are infected with the virus.

According to reports, Air Force officials were trying to discharge two service members, as well as Sgt. Nick Harrison of the D.C. Army National Guard, who had been denied a position in the JAG Corps.

In a written order dated April 6, U.S. District Judge Leonie Brinkema stated that her ruling prevents the military from taking such 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.”

The plaintiff’s Attorney, Peter Perkowski, 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 pilots, who were identified only by pseudonyms in the 2018 complaint, said that considerable advances in treatment mean they can readily receive appropriate medical care and pose no genuine risk of spreading the disease to others.

The preliminary injunction prohibiting the airmen’s discharge was upheld by the 4th U.S. Circuit Court of Appeals in Richmond in 2020. The three-judge bench stated the military’s reasoning for banning HIV-positive service members from deployment was “outmoded and at odds with current science.”

The DOJ argued in front of the 4th Circuit that the Air Force determined that the two airmen could no longer perform their duties because their careers required frequent deployments and their health prevented them from deploying to the US Central Command’s area of responsibility. Personnel with HIV are not allowed to deploy without a waiver by Central Command, which oversees military operations in the Middle East, North Africa, and Central Asia.

While the DOJ acknowledges that HIV transmission is lower with treatment, it says the risk is amplified on the battlefield where soldiers come into contact with blood often.

During a hearing in 2019, an attorney representing the airmen argued that the chances of transmitting HIV in combat are insignificant and that their deployment should not be limited or result in their discharge.

A restriction on deployment may have been justified at a time when HIV therapy was less successful at managing the virus and reducing the danger of transmission, according to the 4th Circuit panel’s written ruling.

“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 to appropriate deference to the military’s professional judgments,” wrote Judge James Wynn Jr.

In a written order issued this month, Brinkema stated that she had temporarily sealed her judgment in the matter to allow both parties 14 days to seek redactions. The judge directed the Air Force secretary to revoke the decision to discharge the two airmen, as well as the Army to retract its decision to deny Harrison’s application for the JAG commission and to reassess those decisions in light of her ruling.

Kara Ingelhart, senior attorney at Lambda Legal, said in a statement that the decision eliminates a barrier for those who have AIDS to become officers and “brings an end to the military’s ongoing discrimination against the approximately 2,000 service members currently serving while living with HIV.”