April 21, 2022

Federal Court Strikes Down Pentagon’s Discriminatory Policies Against Certain PLWH

Handing down what Lambda Legal is calling one the “strongest judicial rulings in over two decades for people living with HIV,” a federal court ordered the Department of Defense (DoD) to allow people with HIV to be deployed and commissioned as officers in the U.S. military. This is particularly significant given the DoD is the world’s largest employer; the ruling will impact about 2,000 service members.

There were two cases under this ruling – Harrison v. Austin and Roe & Voe v. Austin, both brought by service members with HIV. In the Harrison case, Sergeant Nick Harrison, a member of the D.C. Army National Guard was denied a commission, and in the Roe & Voe case (pseudonyms), the Air Force attempted to discharge two Airmen for their HIV status. One nuance of the ruling, however, is that while the Air Force and Army were ordered to rescind their decisions, it only blocks the DoD from separating, discharging or denying the commission applications of asymptomatic HIV-positive service members with undetectable viral loads. The rationale for this detail is based on their purported ineligibility for worldwide deployment due to their HIV-positive status. Since military service is based on one’s deployability at a moment’s notice, this is fairly standard language, but it is a source of some criticism within the HIV community who view it as a protection for only a subset of those with HIV.

Longtime readers of the VOICE may recall that, in 2019, the Academy joined an amicus brief in the Roe case when it was before the Fourth Circuit Court of Appeals, arguing that the science behind HIV goes against any rationale for such discriminatory policies. The full brief can be viewed here.

Lambda Legal rightfully pointed out in its statement that, until these lawsuits, the DoD was the only entity in the U.S. still legally allowed to discriminate against people with HIV despite the Americans with Disabilities Act and the Rehabilitation Act. That is now no longer the case. There is much more written about both cases and their long path to this historic decision. Read more about Roe & Voe v. Austin here; and read more about Harrison v. Austin here. Some of the lawyers in these cases are also representing cadets prevented from joining the Navy and Air Force upon graduation from the respective service academies due to their HIV status in a third lawsuit, Deese and Doe v. Austin. The case is pending in the U.S. District Court for the District of Maryland where the court denied the DoD’s request that the lawsuit be dismissed. Discovery is currently underway.

View the latest Policy Update here.