Federal court knocks down military policy barring advancement, deployment of HIV-positive troops

A longstanding Defense Department policy has barred military service members with HIV from advancement or deployment due to the potential risk of transmission of the virus to others as well as difficulties in providing necessary treatment for the condition.

A federal district judge, however, just ruled against that policy and in favor of HIV-positive service members who sued the government in 2018, The Daily Wire reported.

U.S. District Judge Leonie Brinkema cited modern medical advancements that made treatment easier and substantially reduced the risks of transmission in her ruling on the matter last week that knocked down the policy based solely on a service member’s HIV status.

What happened?

The Hill reported that the lawsuit had initially been filed by a pair of HIV-positive U.S. Air Force airmen facing discharge along with a member of the D.C. Army National Guard, Sgt. Nick Harrison, who had been denied a bid to be commissioned as an officer in the Judge Advocate General Corps.

Judge Brinkema had initially ruled in favor of those service members and issued a preliminary injunction blocking the discharge of the two airmen, and that ruling had subsequently been upheld by a three-judge panel of the 4th Circuit Court of Appeals in 2020.

The appeals court panel at that time declared that the Defense Department’s HIV policy was “obsolete” and, based on the latest medical advancements, the justifications for the continued prohibitions were “outmoded and at odds with current science.”

With the preliminary injunction thus upheld, the case was kicked back down to Judge Brinkema, who has now ordered the military to rescind the discharge orders against the pair of airmen as well as the denial of Harrison’s bid to join the JAG Corps and ordered reevaluations of those prior decisions in light of the court’s ruling.

Policy of “discrimination”

The Military Times reported at the time of the appeals court ruling in January 2020 that Defense Department policy at that time allowed HIV-positive service members to continue serving but barred advancement and deployment to active or potential conflict zones and also prohibited individuals already infected with the virus from joining the military in the first place.

The 2018 lawsuit stemmed from the discharge orders for the two airmen and denial for the JAG applicant that had, in turn, resulted from the so-called “deploy or get out” initiative launched by then-Defense Sec. James Mattis as part of his efforts to bolster and improve military readiness.

According to The Hill, one of the attorneys for the plaintiffs, Peter Perkowski, called Judge Brinkema’s ruling “a landmark victory — probably the biggest ruling in favor of people living with HIV in the last 20 years.” He further noted that the U.S. military was the “last employer in the country that had a policy against people living with HIV.”

Another of the attorneys representing the plaintiffs, Kara Inglehart of Lambda Legal, said the court’s ruling “brings an end to the military’s ongoing discrimination against the approximately 2,000 service members currently serving while living with HIV.”

The Defense Department has yet to respond to questions about the judge’s orders or if it intends to appeal her final decision on the matter.

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