The final categorical disqualification preventing people with HIV from joining the military was struck down August 20, thanks to Lambda Legal Defense and Education Fund and a federal judge.
"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," Gregory Nevins, senior counsel and employment fairness project director for Lambda Legal, stated in a news release. "Americans living with HIV no longer face categorical barriers to service careers — discharge, bans on commissioning, bans on deployment, and finally, bans on enlisting."
The case, Wilkins v. Austin, was first filed in the United States District Court for the Eastern District of Virginia in 2022 on behalf of Isaiah Wilkins, Carol Coe, Natalie Noe, and Minority Veterans of America. The defendant is Lloyd Austin, the defense secretary.
Military policy had barred people with HIV from entering the armed forces and placed limitations on those who were already enlisted but newly diagnosed. The plaintiffs had been denied the ability to enlist or reenlist due to their HIV status.
"Since the time of his diagnosis, Wilkins has had a viral load of under 200 despite not taking HIV medication. This likely places him in the category of "elite controllers" of HIV (that is, his body can control viral replication without antiretroviral therapy), and indicates he may be a 'long-term non-progressor,'" the initial complaint, filed in 2022, stated. "A viral load of less than 200 confers all the same benefits as an 'undetectable' viral load in terms of health and inability to transmit HIV."
In her decision, Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia, wrote that "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," she continued.
Brinkema had already ruled in 2022 that it was illegal for HIV-positive service members with undetectable viral loads and who maintained treatment not to be deployed in active duty outside the continental United States, or commissioned as officers.
Last year, the U.S. Army alone fell short of its recruiting target by 25%, or 15,000, and expects to fall short by at least 15,000 again this year, Brinkema stated.
Restrictions for people living with HIV in the military were first implemented in 1991, "five years before the advent of effective antiretroviral combination therapy," as the complaint stated.
In a release, Wilkins joined Lambda Legal in declaring victory.
"This is a victory not only for me but for other people living with HIV who want to serve," Wilkins stated. "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."
The law firm Winston & Strawn had assisted in the case.
"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," stated Winston & Strawn's Bryce Cooper. "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."
Minority Veterans of America's Peter Perkowski urged the Defense Department to come out with new guidelines.
"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," Perkowski stated. "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."
The U.S. Department of Defense referred comment to the justice department, which didn't return comment by press time.
Due to the Labor Day holiday, LGBTQ Agenda will return Tuesday, September 10.
LGBTQ Agenda is an online column that appears weekly. Got a tip on queer news? Contact John Ferrannini at [email protected]
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