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Is the Military's Ban on HIV-Positive Recruits Finally Going Down?

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Advocates call the current policy discriminatory and "a serious equity issue" and are suing to end it.

Lambda Legal filed a legal challenge Thursday to the U.S. military policy that bars people living with HIV from enlisting in the U.S. Armed Forces.

In a news release, the LGBTQ+ rights group said the policy is discriminatory.

“The existing policy is out of step with science and unlawfully excludes people living with HIV from performing as members of the U.S. military. A positive HIV status alone has no effect on a person’s ability to safely serve,” said Kara Ingelhart, senior attorney at Lambda Legal.

Ingelhart said the current ban is “a serious equity issue that has a significant impact on communities who already face countless systemic barriers to accessing full life in America,” noting that HIV disproportionally affects communities of color and LGBTQ+ people.

Winston & Strawn LLP, Perkowski Legal PC, and Scott A. Schoettes, along with Lambda Legal and the group Minority Veterans of America, filed the suit in the U.S. District Court for the Eastern District of Virginia. The lawsuit was brought on behalf of three individual plaintiffs who were denied enlistment because of their HIV status.

“The military ban on Americans living with HIV is yet another holdover from a long era of needless discrimination,” Bryce Cooper of Winston & Strawn said. “The time has long passed for this senseless policy to end.”

One of the plaintiffs in the suit is Isaiah Wilkins. Wilkins, a gay Black man living with HIV in Georgia, is the son of a military veteran mother and said in the news release that he had wanted to serve since he was young. He first served in the National Guard and then enrolled in the Georgia Military College. Wilkins earned a spot at the U.S. Military Academy Preparatory School at West Point. However, he was denied a military career after a medical exam revealed he was living with HIV, according to Lambda Legal.

“I served honorably and ably as a member of the Georgia National Guard. It’s frustrating that although I am healthy and fit for service, an outdated policy keeps me from continuing my family’s legacy of proud service to our country,” said Wilkins, 23.

Carol Coe of Washington, D.C. is also a plaintiff. The 32-year-old Latina trans lesbian previously served in the military and contracted HIV while in the Army. However, she wasn’t discharged because the military policy does not discharge soldiers only due to their HIV status. After leaving the military in 2013 for gender-affirming surgery, Coe wanted to rejoin.

A third plaintiff is Natalie Noe, a 32-year-old straight cis woman living with HIV in California. Noe, of Indigenous Australian descent, had wanted to pursue a military career after relocating to the U.S. after marrying a U.S. citizen.

Earlier this year, the Biden administration announced that it would not defend restrictions on service members living with HIV from being deployed or commissioned as officers.

A memorandum issued by Defense Secretary Lloyd Austin III said that those living with HIV who were asymptomatic and are undetectable would have no restrictions on their deployability.  

In its news release, Lambda Legal also said that it was looking to expand a previous ruling from this year that ordered the Department of Defense to stop discriminating against service members living with HIV from deploying or being commissioned as officers.

“For years, the military has found it difficult to meet the recruitment and end-strength goals for an all-volunteer force. Given this reality, it is non-sensical for the nation’s largest employer to turn away healthy, fit, and fully capable recruits just because they have HIV,” said co-counsel Peter Perkowski, who is also serves as the legal and policy director of plaintiff MVA. “This policy undermines efforts to build and maintain a strong, vibrant military, and there’s no scientific support for it.”

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