A federal district court in Virginia ruled in April that the Department of Defense can no longer prevent servicemembers from deploying or commissioning as officers based solely on the fact that they are living with HIV. It took four years of litigation—in which I served as one of the lead attorneys—and a trip to the Fourth Circuit Court of Appeals, but we finally achieved the result we were seeking from the beginning. In fact, it was the Fourth Circuit’s strong unanimous panel opinion affirming the preliminary injunction preventing the discharge of some members of the Air Force based on their HIV status that set the stage for the district court to rule in our favor on summary judgment.
Here’s why this ruling is groundbreakingly important:
First, unlike the ruling on the preliminary injunction—which was also a very strong opinion in our favor—this decision was based on a full record. Both sides had the opportunity to collect documents, ask written questions, and take depositions of key decision makers and experts presented by the other side. After reviewing all of the evidence that both sides had collected over many months, the court decided not only that the military’s policies were discriminatory, but that they were completely irrational and therefore unconstitutional—the standard we had to meet in order to prevail.
Second, in reaching this conclusion, the court recognized and understood what an HIV diagnosis means—and doesn’t mean—in the 21st century. As we all know, HIV has been transformed into a chronic, manageable condition through effective combination therapy consisting of one or two tablets a day—but this is one of the first times a court has used that fact to declare that an employer was engaged in discrimination. Just as important, the court recognized that the risk of a battlefield transmission is extremely low even when a person is not virally suppressed—and likely zero when they are. Because over 99.8% of servicemembers living with HIV reach viral suppression (yes, you read that number correctly), the court was comfortable issuing this ruling that covers all people with an undetectable viral load, which is essentially all people currently serving.
Third, the U.S. Department of Defense is the largest employer in the world. Because it is not subject to the Americans with Disabilities Act (or a similar statute that applies to most recipients of federal funds called the Rehabilitation Act), the U.S. military was arguably the only employer in the country that could still get away with this type of discrimination. By bringing a constitutional claim—and meeting the more stringent standard for establishing discrimination under the Equal Protection Clause—we were able to shut down the military’s discriminatory employment practices. Not only does this send a message to every other employer contemplating denying a position to a person based on their HIV status, it also removes some of the last vestiges of discrimination being practiced by the federal government. A government leading the fight against HIV in the U.S.—and decrying stigma and discrimination based on HIV status—should not itself be engaging in such discrimination.
Finally, this decision takes us almost as far as we can go on this front. Some have criticized this decision as merely an incremental step toward true equality, one that reinforces the “viral divide” between those who have a suppressed viral load and those who do not. However, the belief that this decision is a form of “incrementalism” that inappropriately enforces the viral divide is based on a misunderstanding of military logistics and the primary function of a service member. To serve in the military, a person has to be deployable worldwide—which means the person must be able to go to any location needed, including combat zones with limited medical support. The medical resources in such locations are focused on tending to the wounded, providing interim care to those who must be returned stateside, and keeping the forces that remain battle ready. It is not designed or properly equipped to provide regular care and monitoring for a person with a chronic condition that has not yet reached a stable status with consistent (and minimal) treatment.
People who do not have a durably suppressed viral load—which signifies a degree of stability with respect to their HIV—should not be sent on a deployment to a combat zone. It would be irresponsible for the military to send someone who was still attempting to dial in their treatment regimen and to reach the necessary degree of adherence to bring their HIV under control—into a combat zone where viral load testing is not readily available and the wide variety of HIV medications are not maintained as a part of the formulary. And it would be irresponsible to advocate for people living with HIV in such circumstances to be deployed. Though there is a line being drawn here between the virally suppressed and unsuppressed, it is a line that protects people by not placing them in a medically tenuous situation.
If the reasoning of the opinion issued by the district court in Virginia is followed to its logical conclusion, people living with HIV will also be allowed to enlist or otherwise join the military on initial entry. Although this ruling only applies to those currently serving, the Biden administration has pledged to allow people living with HIV to enlist as well. Now we must hold the administration’s feet to the fire in fulfilling the campaign promise it made—as well as halt the HIV criminalization prosecutions that still take place under military law—to ensure that all forms of discrimination by the U.S. military are ended once and for all.
Scott Schoettes is an attorney and advocate who lives openly with HIV. He engages in impact litigation, public policy work, and education to protect, enhance, and advance the rights of everyone living with HIV.
Pentagon updates its HIV policy
Following a federal district court ruling, Secretary of Defense Lloyd Austin issued a memo on June 6 updating the Pentagon’s policy on military personnel who are living with HIV.
“In view of significant advances in the diagnosis, treatment, and prevention of Human Immunodeficiency Virus (HIV), it is necessary to update DoD policy with respect to individuals who have been identified as HIV-positive,” the memo said. “Individuals who have been identified as HIV positive, are asymptomatic, and who have a clinically confirmed undetectable viral load will have no restrictions applied to their deployability or to their ability to commission while a Service member solely on the basis of their HIV-positive status. Nor will such individuals be discharged or separated solely on the basis of their HIV-positive status.”