Defenders estimate that about 2,000 U.S. servicemen serve while living with HIV.
RICHMAND, Virginia – The U.S. military with HIV cannot be fired or banned from becoming an officer just because they are infected with a virus, a federal judge in Virginia has ruled. Lawyers say it is one of the toughest regulations in recent years for people living with HIV.
The cases involved two servicemen whom the Air Force was trying to dismiss, as well as a sergeant. Nick Harrison of the District of Columbia National Guard, who was denied a position in the Bar Association (JAG).
U.S. District Judge Leoni Brinkem said in a written order dated April 6 that her ruling prohibits the military from taking such action against plaintiffs and any other asymptomatic HIV-infected serviceman with an undetectable viral load because they are classified as uncommon. … because of their HIV-positive status. “
Piotr Perkowski, the plaintiffs’ lawyer, called it “a landmark victory – probably the biggest decision in favor of people living with HIV in the last 20 years.”
“The military was the last employer in the country to pursue a policy against people living with HIV. Every other employer, including the rapid response service, is subject to rules that prohibit discrimination on the basis of HIV status, ”he said.
The Ministry of Defense did not immediately respond to the request by e-mail asking to comment on the ruling or whether it intends to appeal.
The pilots, nicknamed in the 2018 lawsuit, argued that major advances in treatment mean they can easily receive appropriate medical care and pose no real risk of infecting others.
In 2020, the 4th District Court of Appeal of the United States, based in Richmond, upheld a previous ban prohibiting the dismissal of pilots. In its decision, a panel of three judges said that the military’s justification for banning the deployment of HIV-positive servicemen was “outdated and contrary to modern science.” The decision of the appellate court left the ban on the time of consideration of their claim.
The Department of Justice argued before the 4th District that the Air Force had decided that the two pilots could no longer perform their duties because their careers required frequent deployments and because their condition prevented them from deploying to the US Central Command area of responsibility where that most aviators will go. The Central Command, which manages military operations in the Middle East, North Africa and Central Asia, prohibits the deployment of HIV personnel without denial.
The Justice Department acknowledged that treatment reduces the risk of HIV transmission, but said the risk is increasing on the battlefield, where soldiers can often come in contact with blood.
The pilots’ lawyer argued during the 2019 hearings that the chances of HIV transmission in combat are infinitesimal and should not limit their deployment or lead to their dismissal.
In its written decision, the 4th District Board stated that the ban on deployment may have been justified at a time when HIV treatment was less effective in combating the virus and reducing the risk of transmission.
“But any understanding of HIV that could justify this ban is outdated and contrary to modern science. Such outdated understandings cannot justify a ban, even in accordance with the standards of respectful review and even due respect for the professional opinions of the military, ”wrote Judge James Winn Jr. in a unanimous 2020 decision.
Brinkema said in a written order this month that she had temporarily sealed her ruling on the case to give both sides the opportunity to demand editing within 14 days. The judge ordered the Secretary of the Air Force to overturn the decision to release the two pilots and ordered the Army to overturn its decision to reject Harrison’s application for admission to the JAG and reconsider those decisions in light of her decision.
Kara Ingelhart, a senior lawyer at Lambda Legal, one of the lawsuits, said in a press release that the ruling breaks down a barrier that prevents people living with AIDS from becoming officers, and “brings an end to ongoing discrimination by the military. ». against about 2,000 servicemen currently serving living with HIV. ”