Let People Living With HIV Enter Armed Forces, Lambda Legal Tells Court

Lambda Legal, representing three people seeking to join the U.S. armed forces, is asking a federal court to strike down the last remaining barrier to military service for people living with HIV.

The court has already found that people with HIV who are currently serving are eligible to deploy and be commissioned as officers, and President Joe Biden’s administration did not appeal that decision. But the military still does not let HIV-positive people enlist. Lambda Legal’s clients filed suit challenging this policy last year, and in a motion filed Wednesday, asked for summary judgment in the case — that is, for it to be decided in their favor without a full trial.

“In light of this Court’s opinion and orders in Harrison and Roe, the only justification of any significance Defendants have left to offer here is the cost of providing health care to” people living with HIV, says the motion, filed in the case of Wilkins v. Austin in U.S. District Court for the Eastern District of Virginia.

The references are to the fact that the court had ruled against barriers to deployment and commissioning of HIV-positive service members in Harrison v. Austin,brought by Army veteran Sgt. Nick Harrison (pictured), andRoe & Voe v. Austin, brought by two Air Force members who faced discharge.

“But this purported justification does not provide a rational basis for the accessions bar as it pertains to new recruits, making the policies creating the bar unconstitutional and arbitrary and capricious,” the filing continues. “First, courts around the country have confirmed that a concern for the preservation of monetary resources standing alone cannot justify a discriminatory classification used in allocating those resources,” the document notes. “Second, the cost of health care has never been reflected or factored into Defendants’ general medical criteria for accession decisions, including with respect to other chronic manageable conditions." HIV has become a chronic manageable condition thanks to medications that render the virus undetectable and untransmittable.

"Third, the cost of providing health care to new [service members living with HIV] would not present a significant financial burden to Defendants in view of their $842 billion proposed budget for Fiscal Year 2024, in which $58.7 billion is allocated to fund health care, including to current SMLWH, service members’ dependents living with HIV, and retirees living with HIV," the motion goes on. Fourth, Defendants can present no supporting evidence for any speculative concern that [people living with HIV] would be disproportionately ‘incentivized’ to join the military to cover their HIV health care costs given that most PLWH already have their health care funded or subsidized by an employer or the federal government through various medical programs.”

“The prognoses and lives of PLWH have been completely transformed by the development and improvement of antiretroviral therapies over the last three decades. And this Court has already held that SMLWH in effective treatment are capable of performing all of their job duties, including potential contingency deployment. It is time for this undisputable fact to be applied to those seeking to join the military and for Defendants’ accession bar for PLWH to be eliminated altogether,” the lawyers add.

The case was brought by Isaiah Wilkins and two people identified by pseudonyms, Carol Coe and Natalie Noe, who were denied enlistment because they had been diagnosed with HIV. Minority Veterans of America is also a plaintiff. Defendants are Secretary of Defense Lloyd Austin and Secretary of the Army Christine Wormuth.

“We ask that this court strike down this discriminatory policy barring people living with HIV from seeking enlistment or appointment to the military because they are able to perform all job duties associated with military service, including worldwide deployment,” Kara Ingelhart, senior attorney for Lambda Legal, said in a press release. “It is time for the military to acknowledge that arguments based on outdated science or concern for preserving monetary resources are no longer defensible. Neither can continue to be used to deny anyone the opportunity to join the military and to serve their country.”

“Giving up on my dream to serve my country is not an option. The military is in my blood, my family has served in every military campaign dating back to the Civil War,” Wilkins added. “From joining the Georgia National Guard at age 17, being honored with a prestigious scholarship to attend Georgia Military College, to earning a prestigious spot at the U. S. Military Academy Preparatory School at West Point, I was on a trajectory to fulfilling this dream. I urge this court to strike down this discriminatory policy. People living with HIV want to serve. We raised our hands and said, ‘I volunteer.’”