Court allows lawsuit against Defense Department’s HIV policy to proceed

ALEXANDRIA, Va. – On Friday, a Virginia federal court ruled a case challenging the military’s discriminatory policies governing service members living with HIV will continue by denying the government’s motion to dismiss.

The suit was filed by Lambda Legal and OutServe-SLDN, along with pro bono counsel from Winston & Strawn LLP. The plaintiffs’ motion to halt implementation of a new Department of Defense policy that likely would have resulted in the discharge of service members living with HIV was also denied because the Pentagon modified the policy after the plaintiffs file the motion.

“All service members with HIV want is for the Pentagon to let us do the jobs we signed on to do,” said plaintiff Sgt. Nick Harrison in a press release from Lambda Legal. “These patriots love this country, volunteered to be soldiers, and look forward to the day that they can serve to the full extent of their abilities, and to not be impeded by misperceptions about HIV.”

“We are pleased the court recognizes the importance of allowing this case to move forward, and of ensuring that outdated and irrational policies regarding people living with HIV are not allowed to stand,” said Scott Schoettes, counsel and HIV Project Director at Lambda Legal, in the release. “While we develop the record the Court needs in order to rule on the constitutionality of the Defense Department’s HIV-related personnel policies, we will continue to be vigilant to ensure that service members are not being discharged solely because they are living with HIV under the Trump administration’s new version of its “Deploy or Get Out!”

Under long-standing DoD policies, those who are serving stateside after an HIV diagnosis are denied important career advancement opportunities and are not allowed to commission as an officer, according to Lambda Legal. Sgt. Harrison was denied a position in the Judge Advocate General (JAG) Corps because his HIV prevents him from commissioning as an officer. Currently, service members who are diagnosed with HIV while in the military, like Harrison, are classified as non-deployable without regard to their fitness, while people who have already been diagnosed with HIV are not allowed to enlist or commission as officers at all. The revised version will create a new category of deployment-limited personnel that the military will not discharge under the new policy, and the government’s lawyers have indicated that people living with HIV are likely to be reclassified into this category.

OutServe-SLDN is an organizational plaintiff in this case to advance the interests of its members who are living with HIV. In a companion lawsuit entitled Doe v. Mattis, Lambda Legal and OutServe-SLDN are representing an anonymous service member living with HIV who the Air Force refused to commission as an officer after he graduated from the Air Force Academy, despite recommendations from medical personnel.

“Since we first filed this case, we have heard from many service members worried about how Trump’s Defense Department will handle people living with HIV, so we are very pleased the Court denied the government’s motion to dismiss.,” said Peter Perkowski, legal director of OutServe-SLDN, in a statement. “The judge had some very pointed questions for the government about why it made sense for the military to invest as much as it had in Sergeant Harrison and then deny him this position as a JAG officer simply because he is living with HIV. We look forward to proving that decision was not only nonsensical, but unconstitutional.”