Justice in the Workplace

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TAKING ON THE MILITARY’S OUTDATED, DISCRIMINATORY HIV POLICY

BY TIM MURPHY

Having served two tours overseas, in Afghanistan and Kuwait, and newly in possession of a law degree, National Guardsman Nick Harrison, 41, was ready to advance from enlisted soldier to officer—specifically, to become a member of the Judge Advocate General Corps, the legal division of the military for the D.C. National Guard.

“I’ve always wanted to be an officer,” he says. “JAGs are responsible for fixing problems. I’d have the opportunity to take care of soldiers who slipped through the cracks.”

When he was accepted into the JAG Corps in 2013, Harrison moved from Oklahoma to Washington, D.C., for the job. But then his medical exam disqualified him. Harrison had tested positive for HIV the previous year and he’d been on easy-to-take meds and perfectly healthy ever since. But the military generally doesn’t let people living with HIV serve overseas or as officers, thus curtailing their career advancement.

Now, with Lambda Legal, he is taking the policy to court. “Service members with HIV are currently able to take on any role and be deployed anywhere,” says Scott Schoettes, Lambda Legal’s HIV Project Director. “The military is behind on the science.” It’s been long-established that the risk of transmission by merely living or working with people with HIV is essentially zero. And with successful treatment for HIV and an undetectable viral load, a person has little, if any, risk of transmission.

Both the Civil Rights Act and the Americans with Disabilities Act do not apply in the military, so Lambda Legal will argue the case as a constitutional equal protection challenge.

Harrison, who remains in the Guard as a reserve and is working in Washington as a civil contractor at a Department of Defense agency, says, “I want to be the case to show that this policy is outdated. In this day and age, there’s no reason why someone with well-treated HIV can’t serve overseas.”

SECOND APPEALS COURT SAYS ANTIGAY DISCRIMINATION IS COVERED BY FEDERAL LAW

February saw a huge legal LGBT rights victory when the New York-based Second Circuit Court of Appeals, in a case that Lambda Legal argued, ruled that sexual orientation discrimination is a form of sex discrimination prohibited under Title VII of the federal Civil Rights Act.

The case involved Donald Zarda, a New York sky-diving instructor who in 2010 sued his employer after he was fired for being gay—and who later died in a BASE jumping accident. (His sister and his former partner have continued the suit.)

A trial court had dismissed Zarda’s case, pointing to a precedent that said antigay discrimination was not covered by Title VII. But the Second Circuit reversed and ruled that antigay discrimination is a form of sex discrimination, becoming the second federal circuit to so rule, following Lambda Legal’s landmark victory last year in Hively v. Ivy Tech in Chicago.

“So here we have the second federal appeals court to rule that Title VII covers sexual orientation,” says attorney Greg Nevins, Lambda Legal’s director of the Employment Fairness Project. “We’ve been arguing that if you discriminate against someone for liking men when they’re not a woman, or liking women when they’re not a man, then that’s sex discrimination.” It’s an understanding of the law that Lambda Legal has pioneered and courts are increasingly agreeing with it.

In Zarda, the U.S. Equal Employment Opportunity Commission sided with Lambda Legal, clashing at the oral argument with the U.S. Department of Justice under Attorney General Jeff Sessions. “Sessions was smacked down 10-3,” Nevins says.

The issue of Title VII coverage is also before the Eighth Circuit, in St. Louis, where Lambda Legal represents Mark Horton, who received an offer for a new job in the geriatric care field—and gave notice at his old one— before casually referring to his partner as “he” in an email to the employer. The employer’s responsiveness and tone soured immediately, followed by a rescinding of the offer.

“We persuaded an overwhelming majority of the judges in Hively and Zarda—including a majority of the judges appointed by Republican presidents—with a common-sense, straightforward approach of just following the words of the statute,” Nevins says. “That should serve us well in the conservative Eighth Circuit.”

“At very least,” he says, “the victories so far are a good sign if this issue goes to the Supreme Court.”

ANOTHER VICTORY AGAINST TRUMP’S BAN ON TRANS PEOPLE IN THE MILITARY

In April, a federal judge in Seattle ruled that the injunction stopping President Donald Trump’s ban on transgender service members should stay in place. That continues a streak of legal victories for Lambda Legal’s Karnoski v. Trump and other suits challenging the ban, which Trump infamously announced by tweet last summer, sending both current and aspiring trans service members into a state of upheaval.

Ryan Karnoski, the lead plaintiff, was on the cover of Impact’s last issue. He is a transgender mental health clinician in Seattle suing the government for the right to enlist.

The judge, Marsha Pechman, also said that any time the government wants to discriminate against transgender people, it has to satisfy “strict scrutiny.”

“This is big,” says Lambda Legal senior attorney Peter Renn, among those arguing Karnoski v. Trump. It means the government must show a compelling reasons that the discrimination is necessary, the same very high— often insurmountable—bar required to make discrimination based on race, national origin or alienage permissible. “Strict scrutiny is the hardest test that the law knows and this is the first court in the country to ever apply it for transgender folks,” says Renn.

Pechman also refused the government’s request to get Trump himself removed from the case as a defendant. And that’s as it should be, says Renn: “He’s the key architect of this ban.”

The Trump administration had hoped that by making a few minor tweaks to the ban, announced in a March 23 allegedly “new” plan, it could get the injunction lifted. But Pechman ruled that the current policy is essentially an implementation of the same ban announced last summer.

The case is on track to go to trial in early 2019. Similar cases are pending in three other courts. “We’re confident that the ban is still doomed at its next reckoning,” Renn says.