Sarah Toce
A U.S. District Court has struck down the last categorical disqualification preventing people living with HIV from joining the U.S. Armed Services.
“Defendants’ policies prohibiting the accession of asymptomatic HIV-positive individuals with undetectable viral loads into the military are irrational, arbitrary, and capricious. Even worse, they contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals.
“Modern science has transformed the treatment of HIV, and this Court has already ruled that asymptomatic HIV-positive service members with undetectable viral loads who maintain treatment are capable of performing all of their military duties, including worldwide deployment. Now, defendants must allow similarly situated civilians seeking accession into the United States military to demonstrate the same and permit their enlistment, appointment, and induction.”
The ruling came in Wilkins v. Austin, filed by Lambda Legal, Peter Perkowski, Esq., Scott A. Schoettes, Esq., and Winston & Strawn LLP.
“We are pleased the court has eliminated the last discriminatory policy that barred people living with HIV from seeking enlistment or appointment to the military,” said Gregory Nevins, Senior Counsel and Employment Fairness Project Director for Lambda Legal. “Americans living with HIV no longer face categorical barriers to service careers – discharge, bans on commissioning, bans on deployment and finally bans on enlisting.”
“This is a victory not only for me but for other people living with HIV who want to serve,” said Plaintiff Isaiah Wilkins. “As I’ve said before, giving up on my dream to serve my country was never an option. I am eager to apply to enlist in the Army without the threat of a crippling discriminatory policy.”
“We are grateful for the opportunity to work with Lambda Legal and others to overturn the military’s outdated and unconstitutional policies concerning people living with HIV,” said Bryce Cooper at Winston & Strawn. “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.”
“We are thrilled the court has ruled in our favor and agreed that the military’s outdated policies blocking people living with HIV from enlisting are unconstitutional,” said Peter Perkowski, plaintiff attorney and Legal & Policy Director, Minority Veterans of America (MVA). “Thanks to modern science, there is no legitimate reason to continue denying people living with HIV the ability to enlist. I am proud to have fought and won for these brave American patriots, and we urge the Department of Defense to immediately comply with the court’s decision.”
“We are pleased the court rejected the DoD’s attempts to justify this discriminatory policy based on the costs of HIV-related healthcare for new members. No other U.S. employer could refuse to hire people living with HIV on this basis, and now neither can the U.S. military,” said Scott Schoettes, Esq. “The cost of providing health insurance or health care is never a valid excuse for refusing to hire a qualified individual capable of doing the job.”
Background
The lawsuit, Wilkins v. Austin, was filed on behalf of three individual plaintiffs who could not enlist or re-enlist based on their HIV status. Minority Veterans of America (“MVA”) is also an organizational plaintiff. MVA advances the interests of its civilian members who are living with HIV and wish to serve in the military.
The filing followed the Biden administration’s announcement in July 2022 that it would no longer defend discriminatory restrictions that prevented servicemembers living with HIV from deploying and commissioning as officers. Instead of appealing the decision of the district court declaring these restrictions unlawful and unconstitutional, Defense Secretary Lloyd J. Austin III issued a memorandum outlining changes to the relevant regulations, which stated that individuals who have been identified as HIV-positive, are asymptomatic, and who have a clinically confirmed undetectable viral load will have no medical restrictions applied to their deployability or to their ability to commission while a servicemember based on their HIV-positive status.
Before the July 2022 announcement, a federal district court handed down one of the most substantial judicial rulings in over two decades for people living with HIV in two cases—Harrison v. Austin and Roe & Voe v. Austin. The rulings ordered the Department of Defense (DOD)—the world’s largest employer—to stop discriminating against servicemembers living with HIV and to allow them to deploy and commission as officers in the U.S. military. That groundbreaking ruling represented a landmark moment in the fight to advance the rights of people living with HIV. It reflected the reality that HIV is a chronic, treatable condition, not a reason to discriminate.
Joining Lambda Legal attorney Gregory R. Nevins and former Lambda Legal attorney Kara Ingelhart, Founding Director of the LGBTQI+ Rights Clinic at Northwestern Law are Scott A. Schoettes, Esq., Peter Perkowski of Perkowski Legal, PC and the Legal & Policy Director at MVA, and Amandeep Sidhu, Bryce Cooper, Robert Vlasis, Lauren Gailey, Dave Bujarski, and Hannah Shankman of Winston & Strawn LLP.
Link to the decision here.
Read more about Wilkins v. Austin here.
Read more about Harrison v. Austin here.
Read more about Roe & Voe v. Austin here.
