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Landmark Court Victory: Military Can't Boot People With HIV

Court Orders Military to Reverse Discharge of Members Living with HIV

A federal judge has delivered landmark rulings in two cases involving the U.S. military’s policy of summarily discharging service members living with HIV.

District Court Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia ruled the Air Force must rescind its prior decision to discharge two unnamed plaintiffs and the Army must do the same for Sergeant Nick Harrison who was also denied a commission, finding their policies are at odds with known medical science and treatment methods. Although two separate cases, Harrison v. Austin and Roe & Voe v. Austin were combined for the purposes of discovery and argument. Lawyers for the plaintiffs hailed the ruling, which will remain under seal for several weeks.

“Until these lawsuits, the Department of Defense was the only entity in the U.S. that was still legally permitted to discriminate against people living with HIV despite the existence of the Americans with Disabilities Act and the Rehabilitation Act,” Kara Ingelhart, senior attorney at Lambda Legal, a co-counsel for the plaintiffs, said in a statement. “This ruling knocks down the barrier preventing people living with HIV from commissioning and brings an end to the military’s ongoing discrimination against the approximately 2,000 service members currently serving while living with HIV.”

“We are grateful for the opportunity to work with MMAA, Lambda Legal, and others to overturn the military’s outdated and unconstitutional policies concerning people living with HIV,” John Harding, a senior associate at co-counsel Winston & Strawn, said in a statement. “Our pro bono efforts, in both the district court and the Fourth Circuit, have brought about a meaningful, and long overdue, change for service members living with HIV.”

Harrison, a sergeant in the D.C. Army National Guard, was denied advancement to an officer position in the Judge Advocate General Corps due to the fact he is living with HIV. Two active-duty airmen in the Air Force, pseudonymously named Richard Roe and Victor Voe, were told of their imminent discharge because they were living with HIV. The Pentagon was adhering to the Trump-era policy of discharging service members who were undeployable for a period of 12 months. Since the military considers persons living with HIV to be non-deployable regardless of whether they are undetectable (and thus can't transmit HIV to anyone), the plaintiffs were all subject to discharge.

Advocates, military members, and plaintiffs welcomed the judge’s decision.

“It’s profoundly emotional to know that all service members with HIV will now be able to serve and defend our country without discrimination,” Harrison, 43, an Oklahoma native with tours in Afghanistan and Kuwait, said in a statement. “I’m incredibly pleased with the court’s decision, and it’s very reassuring to hear the court recognize that these policies are irrational and based on outdated stereotypes and stigma.”

Roe said in a statement, “I am thrilled to hear that the judge has ruled in our favor, as it would remove barriers for people living with HIV like me in the military. When aspiring to join the military, I would have never thought this would happen to me; now, I feel like my service matters even more. I no longer have to live in fear of discrimination based on the simple fact I am living with HIV, especially since it is a treatable condition that poses no real risk to others.”

“I joined this lawsuit because I feel an extreme sense of duty to my country and I wanted to make sure no one has to face this type of injustice, especially in the military,” echoed Voe in a statement. “I would love for this decision to serve as an educational opportunity for millions of people out there to realize that appropriately treated HIV has almost no effect on life expectancy, that science and medicine have progressed to a point that we can live normally and can perform any job, including that of a service member who deploys into a combat zone.”

It is unclear if the Air Force and Army intend to appeal the court’s ruling.

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