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Lambda Legal to Challenge Discriminatory Military Service Policy Preventing People Living with HIV from Enlisting in U.S. Armed Forces

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November 10, 2022
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Plaintiff Isaiah Wilkins

Today, Lambda Legal filed a legal challenge to the U.S. Military policy that prevents people living with HIV from enlisting in the U.S. Armed Forces. The discriminatory policy requires that applicants for appointment and enlistment, as well as individuals being inducted into military Services, be screened for HIV and denied entry if they test positive.  

Lambda Legal and co-counsel Winston & Strawn LLP, Perkowski Legal, PC, and Scott A. Schoettes, Esq. filed the lawsuit in the U.S. District Court for the Eastern District of Virginia on behalf of three individual plaintiffs who have been denied enlistment based on their HIV status. Minority Veterans of America (“MVA”) is also a plaintiff. MVA advances the interests of its civilian members who are living with HIV and wish to serve in the military. 

“The existing policy is out of step with science and unlawfully excludes people living with HIV from performing as members of the U.S. military. A positive HIV status alone has no effect on a person’s ability to safely serve,” said Kara Ingelhart, Senior Attorney at Lambda Legal. “Because HIV disproportionately impacts LGBTQ+ people and people of color, this discriminatory policy is not only outdated, but is also a serious equity issue that has a significant impact on communities who already face countless systemic barriers to accessing full life in America. Striking this policy would help expand opportunities for over 1.2 million people in the U.S. living with HIV — 42% of which are Black and 21.7% are Latinx.”  

“The military ban on Americans living with HIV is yet another holdover from a long era of needless discrimination,” said Bryce Cooper of Winston & Strawn. “The time has long passed for this senseless policy to end.”  

“For years, the military has found it difficult to meet the recruitment and end-strength goals for an all-volunteer force. Given this reality, it is non-sensical for the nation’s largest employer to turn away healthy, fit, and fully capable recruits just because they have HIV,” said co-counsel Peter Perkowski, who is also the Legal & Policy Director of plaintiff MVA. “This policy undermines efforts to build and maintain a strong, vibrant military, and there’s no scientific support for it. We will keep fighting until it ends.” 

“I served honorably and ably as a member of the Georgia National Guard. It’s frustrating that although I am healthy and fit for service, an outdated policy keeps me from continuing my family’s legacy of proud service to our country,” Plaintiff Isaiah Wilkins said.  

Wilkins is a 23-year-old gay Black cisgender gay man living with HIV in Georgia. His mother is a military veteran, and he’s wanted to serve for as long as he can remember. But after serving in the National Guard, enrolling at the Georgia Military college, and securing a position at the U.S. Military Academy Preparatory School at West Point, he was ultimately denied pursuit of his military career after a medical examination revealed his HIV status.  

Carol Coe is a 32-year-old Latina transgender lesbian woman living with HIV in Washington, D.C. with her wife. She enlisted in the Army while in high school and shipped to bootcamp at 18 years old in 2008. Coe contracted HIV while serving in the Army, but was not discharged, because military policy did not require discharging people based solely on HIV status.  Coe left the military in 2013 to access gender-affirming care and to live openly as a transgender woman. Coe loved serving in the military. She was honorably discharged and wants to return to serve in the military as the woman she is. 

Natalie Noe is a 32-year-old, cisgender straight woman of Indigenous Australian descent living with HIV in California. Noe immigrated to the United States after marrying a U.S. citizen. Soon after relocating, she became interested in joining the military. After applying to become a member of the Army Reserve, a recruiter mapped out a path that would align with her long-term career goals in the Army, which include eventually becoming a commissioned officer. Noe was given a “report date” of July 13, 2020.  Shortly thereafter, Noe was informed that she would not be allowed to join the Army Reserves because her HIV test was positive. 

Minority Veterans of America is a 501(c)(3) advocacy organization, the largest minority-focused military- and veteran-serving organization in the country. Its mission is to create belonging and advance equity and justice for the minority military and veteran community, including veterans and servicemembers living with HIV. MVA’s mission is to advocate for equity and justice for the minority veteran community. MVA’s work includes direct advocacy before Congress and federal agencies on issues of concern to its members, including those who are still serving. MVA aims to create an intersectional movement of minority voices and build a collective voice capable of influencing critical change for the good of minority servicemembers and veterans. 

The filing comes after Lambda Legal celebrated the Biden administration’s announcement in July 2022 that it will no longer defend discriminatory restrictions that prevented servicemembers living with HIV from deploying and commissioning as officers. Instead of appealing the decision of the district court declaring these restrictions unconstitutional, Defense Secretary Lloyd J. Austin III issued a memorandum outlining changes to the relevant regulations, which stated that individuals who have been identified as HIV-positive, are asymptomatic, and who have a clinically confirmed undetectable viral load will have no restrictions applied to their deployability or to their ability to commission while a servicemembers on the basis of their HIV-positive status. 

“Because this litigation team definitively established that servicemembers living with HIV can safely deploy, no valid reason remains to deny civilians living with HIV the opportunity to join the military,” said Scott Schoettes, former Lambda Legal Counsel now in private practice. “As before, we look forward to dismantling any justifications the military attempts to offer for its discriminatory policy.” 

Earlier this year, a federal district court handed down one of the strongest judicial rulings in over two decades for people living with HIV, ordering the Department of Defense (DOD) — the world’s largest employer — to stop discriminating against servicemembers living with HIV and to allow them to deploy and commission as officers in the U.S. military. That groundbreaking ruling represented a landmark moment in the fight to advance the rights of people living with HIV and reflect the reality that HIV is a chronic, treatable condition, not a reason to discriminate. This new filing seeks to build upon that important jurisprudence to expand access to enlistment and appointment opportunities to people living with HIV. The previous ruling came in two cases, Harrison v. Austin and Roe & Voe v. Austin.  

In the ruling, District Court Judge Leonie Brinkema ordered the Air Force to rescind its decision to discharge Roe and Voe and ordered the Army to rescind its decision denying Harrison’s application to commission into the Judge Advocate General Corps—decisions that were based on HIV status. The order enjoins the DOD and the other defendants from separating, discharging, or denying the commission applications of asymptomatic HIV-positive servicemembers with undetectable viral loads based on their purported ineligibility for worldwide deployment due to HIV. The district court reached the conclusion that the military’s bar to the deployment — and therefore commissioning — of servicemembers with HIV was not only arbitrary and capricious but also unconstitutional. 

The Harrison and Roe cases received overwhelming support from several military experts, medical associations, and HIV advocates who filed three amicus briefs opposing the deployment and discharge policies when the preliminary injunction was on appeal to the Fourth Circuit in 2019. The friend-of-the-court briefs included three former military leaders — former Secretary of the Navy Ray Mabus, former Secretary of the Army Eric Fanning, and former Secretary of the Air Force Deborah Lee James — as well the HIV Medicine Association, the Infectious Disease Society of America (IDSA), AIDS United, and the American Public Health Association. 

Joining Lambda Legal attorneys Kara Ingelhart, Shelly L. Skeen and Greg Nevins on the case are Scott A. Schoettes, Esq., Peter Perkowski of Perkowski Legal, PC, and with Amandeep Sidhu, Bryce Cooper, Robert Vlasis, Lauren Gailey,  Dave Bujarski, and Hannah Shankman of Winston & Strawn LLP. 

Read more about Roe & Voe v. Austin here: https://www.lambdalegal.org/in-court/cases/roe-and-voe-v-austin