A federal judge in Virginia ruled that U.S. service members who are HIV-positive cannot be discharged or barred from becoming an officer because they’re infected with the virus. For people living with HIV, the ruling is one of the strongest in years, advocates said.
The involved cases were the two service members, that the Air Force attempted to discharge, and Sgt. Nick Harrison of the D.C. Army National Guard, was denied a Judge Advocate General (JAG) Corps position.
Her ruling stops the military from taking those measures 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,” said U.S. District Judge Leonie Brinkema, in a written order dated April 6.
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. He said that every other employer — including first responders — is subject to rules that prohibit discrimination based on HIV status,” he said.
An email seeking comment on the incident or whether it intends to appeal was not immediately responded to by the Department of Defense.
The pseudonym identified airmen in the 2018 lawsuit argued that the significant advancements in treatment results in readily available, appropriate medical care and present no real risk of transmission to others.
The Richmond-based 4th U.S. Circuit Court of Appeals supported a preliminary ruling barring the discharge of the airmen in 2020. The three-judge panel said, in its judgment, that the military’s logic for banning the deployment of HIV-positive service members was “outmoded and at odds with current science.” While their lawsuit was being heard, the appeals court ruling left the injunction in place.
In front of the 4th Circuit, the Department of Justice argued that the Air Force concluded 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. Personnel with HIV are prohibited by Central Command, which governs military operations in the Middle East, North Africa, and Central Asia, from deploying without a waiver.
Treatment lowers the risk of transmitting HIV, the DOJ acknowledged, but it said the risk is increased on the battlefield, where soldiers can often come into contact with blood.
Because the odds of transmitting HIV in combat are small, their deployment should not be limited, nor should it lead to their discharge, argued an attorney during a 2019 hearing.
The 4th Circuit panel said, in its written ruling, that a deployment ban may have been justifiable 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 to appropriate deference to the military’s professional judgments,” Judge James Wynn Jr. wrote in the unanimous 2020 ruling.
To give both sides a chance to seek redactions within 14 days, her ruling had been temporarily sealed, Brinkema said in this month’s written order.
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 reevaluate those decisions in light of her ruling.
A senior attorney at Lambda Legal, one of the groups that brought the lawsuits, Kara Ingelhart, said in a news release that the ruling removes a barrier to hindering 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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