RICHMOND, Va. (AP) — U.S. soldiers who are HIV-positive cannot be fired or barred from becoming an officer simply because they have the virus, a federal judge in Virginia ruled. Advocates say it is one of the strongest rulings in years for people living with HIV.
The cases involved two service members the Air Force was attempting to fire and the DC Army National Guard’s Sgt. Nick Harrison, who was denied a position in the Judge Advocate General (JAG) Corps.
U.S. District Judge Leonie Brinkema said in a written order April 6 that her ruling bars the military from taking those actions against the plaintiffs and other asymptomatic HIV-positive service members with an undetectable viral load “because they are considered relevant to the deemed unsuitable for worldwide deployment…because of their HIV-positive status.”
Peter Perkowski, an attorney for the plaintiffs, called it “a landmark victory — quite possibly the largest ruling in favor of people living with HIV in the past 20 years.”
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“The military was the last employer in the country to have a policy against people living with HIV. Every other employer — including first responders — is subject to rules that prohibit discrimination based on HIV status,” he said.
The Department of Defense did not immediately respond to an email request for comment on the ruling or whether it intends to appeal.
The airmen, identified under pseudonyms in the 2018 lawsuit, argued that major advances in treatment mean they can easily receive appropriate medical care and pose no real risk of transmission to others.
In 2020, the Richmond-based 4th US Circuit Court of Appeals upheld an injunction preventing the Airmen from being fired. In its decision, the three-member panel said the military’s rationale for banning the deployment of HIV-positive military personnel was “outdated and contrary to current science.” The appeals court’s ruling left the injunction in place while her lawsuit was heard.
The Justice Department argued before the 4th Circuit that the Air Force determined the two Airmen could no longer perform their duties because their job fields required them to be used frequently and because their condition prevented them from deploying to U.S. Central Command’s area of responsibility , where most aviators are expected to go. The Central Command, which governs military operations in the Middle East, North Africa and Central Asia, bans HIV-positive personnel from deployment without a waiver.
The DOJ acknowledged that the treatment lowers the risk of HIV transmission, but said the risk is compounded on the battlefield, where soldiers often come into contact with blood.
A lawyer for the Airmen argued during a 2019 hearing that the likelihood of HIV transmission in combat was vanishingly small and should not limit their use or result in their dismissal.
In its written decision, the 4th Circuit Panel said a ban on use may have been warranted at a time when HIV treatment was less effective at controlling the virus and reducing the risk of transmission.
“But any understanding of HIV that could justify this ban is outdated and at odds with current science. Such antiquated understandings cannot warrant a ban, even under a respectful standard of review and even with due regard for the military’s professional judgment,” Justice James Wynn Jr. wrote in the 2020 unanimous decision.
Brinkema said in this month’s written order that she temporarily sealed her decision in the case to give both sides a chance to request redactions within 14 days. The judge ordered the Secretary of the Air Force to overturn the decision to fire the two Airmen and ordered the Army to overturn its decision to deny Harrison’s application to serve in the JAG and to reevaluate those decisions in light of its ruling.
Kara Ingelhart, senior attorney at Lambda Legal, one of the groups that filed the lawsuits, said in a press release that the ruling breaks down a barrier preventing people with AIDS from becoming officers and “puts an end to the military’s ongoing discrimination.” campaign against the approximately 2,000 military members currently on duty while living with HIV.”
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