Respect Equality

Federal court strikes down military restrictions on service members living with HIV

“This policy was put in place many years ago, and the science has changed dramatically around HIV,” attorney Scott Schoettes told Changing America.

Story at a glance

  • A federal court on Wednesday struck down a Pentagon policy preventing current military service members living with HIV from deploying or being commissioned as officers.

  • The ruling comes in two separate cases, one against the Air Force and one against the Army, which were both filed in 2018.

  • The policy, put in place after HIV first began spreading in the U.S., has been criticized for being at odds with current science about HIV transmission.

A federal court on Wednesday struck down a decades-old policy barring current military service members from deploying or being commissioned as officers if they are HIV-positive.

The ruling comes in two separate cases – one against the U.S. Air Force and one against the Army – which were combined for purposes of discovery and argument. Both lawsuits were filed by the law firm Lambda Legal in 2018.

District Court Judge Leonie Brinkema on Wednesday ordered the Air Force to reverse its decision to discharge two Airmen living with HIV and ordered the Army to walk back its decision to deny an HIV-positive Sergeant’s  application to commission into the Judge Advocate General Corps, according to a Lambda Legal news release.

Brinkema’s order also prevents the Department of Defense (DOD) from “separating, discharging, or denying the commission applications” of any current asymptomatic HIV-positive service members.

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Wednesday’s decision follows an earlier ruling which upheld a preliminary injunction against the Air Force preventing it from discharging the two Airmen – identified pseudonymously as Richard Roe and Victor Voe – after they were unable to deploy following HIV diagnoses.

The court in that ruling wrote that “any understanding of HIV that could justify this [deployment] ban is outmoded and at odds with current science.”

“This policy was put in place many years ago, and the science has changed dramatically around HIV,” Scott Schoettes, a former Lambda Legal attorney who is co-counsel in the two cases, told Changing America. “Our understanding of HIV and how it is and is not transmitted has changed dramatically.”

“This ruling has now ensured that [the military] will be moving forward into the future and actually applying the science that is out there that allows people living with HIV to do this job, or really any job in the world,” Schoettes said.

Current Pentagon policy considers service members living with HIV non-deployable and will not allow them to enlist or to be appointed as officers.

Former military leaders in a 2019 amicus brief argued against the policy, writing that “there is no legitimate reason to deny HIV positive service members the opportunity to deploy.”

“The United States’ all-volunteer military depends on allowing every citizen who is fit to serve to do so. In our professional military judgment, any policy that discharges willing and able service members based on chronic, but well-managed, medical conditions should be based on the most up-to-date science and be justified by credible—not theoretical—risks,” the brief reads.

According to Schoettes, there has never been a documented case of HIV transmission in a combat situation.

In an interview with Changing America, Sgt. Nick Harrison, the plaintiff in the case against the Army, said the policy is not only at odds with current science, but also at odds with current attitudes toward HIV, which attacks the body’s immune system.

“The stigma that I faced, I really didn’t see it from my fellow service members,” he said. “They were all actually extremely supportive.”

“The military is committed to this sort of value system,” he added, “we don’t care what your background is, your race, ethnicity, disability or anything that distinguishes you. As long as you can do the job and you’ve got our backs, we’re happy to serve with you.”

Harrison, a sergeant in the D.C. Army National Guard, was denied to serve as an officer in 2018 because of his HIV-positive status, despite being pre-selected for the position. Harrison was diagnosed in 2012, after his second tour of duty in the Middle East.

Harrison said he was pleased with the court’s decision Wednesday and considers it an opportunity for himself and every other service member living with HIV to “move forward with our lives.”

He plans to continue to serve in the military and is looking forward to scheduling his commissioning ceremony.