Victory! Two HIV-Positive Former Military Cadets to Have Their Day in Court

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September 3, 2020

Yesterday, a federal district court denied a request by the Trump administration to dismiss a lawsuit brought by two former U.S. military cadets challenging the administration’s discriminatory policies targeting servicemembers living with HIV. The ruling, out of the U.S. District Court for the District of Maryland, came in the case of Deese & Doe v. Esper, filed by Lambda Legal and Modern Military Association of America (MMAA) with pro bono co-counsel Winston & Strawn.

In the opinion supporting its decision, the court states:

“There is simply no basis to hold that officers must be free from HIV even if they are physically capable of service and would otherwise be able to deploy. The military’s policy of withholding officer commissions from HIV-positive service members renders those service members second-class citizens. That is precisely what the equal protection clause forbids.”  In addition, the court ruled that plaintiffs’ claims alleging that the categorical bar to commissioning people with HIV violates the Administrative Procedures Act will proceed. 

The ruling is the latest in a string of victories secured by Lambda Legal, MMAA and Winston & Strawn in three separate cases brought on behalf of five U.S. military servicemembers facing discharge or denied  commissions because of their HIV status. In part relying on previous court determinations that the military’s policies preventing deployment of service members living with HIV are irrational, the district court is allowing this case to proceed. The former cadets will now get the opportunity to demonstrate that these outdated policies resulted in the denial of their commissions and subsequent discharges from military service.

“Again and again, federal courts have ruled against the Trump administration’s attempts to shut down these lawsuits vindicating the rights of servicemembers living with HIV to serve their country free from discrimination,” said Scott Schoettes, Counsel and HIV Project Director at Lambda Legal. “By now, one would hope the administration would see the writing on the wall and stop defending policies that serve no purpose but to prevent these patriotic young men from serving their country. We will continue prosecuting these lawsuits until the military is forced to bring its HIV-related personnel policies into the 21st century.” 

"I'm glad that I will get my day in court,” said plaintiff Kevin Deese. “It's important that people with HIV be allowed to follow their dreams, including serving their country through military service. Some of the bravest, strongest, and smartest people I have ever met live with HIV, and our armed forces deserve to benefit fully from their resiliency and commitment to service, rather than being held back by outdated and prejudicial policies. There is not a job in the world that a person living with HIV can’t do. I hope that this case helps to reset expectations about what is possible for people living with HIV." 

In the lawsuit, filed in August 2018, Lambda Legal, MMAA and Winston & Strawn represent two former military cadets who were denied commissions as officers in the U.S. Navy and U.S. Air Force after graduating from the respective service academies because they are living with HIV. Both Kevin Deese and John Doe (a pseudonym) were discharged even though they had the full support of their superiors and military healthcare providers to commission as officers and continue serving their country. The other two lawsuits similarly challenging the Pentagon’s discriminatory policies targeting servicemembers living with HIV are Harrison v. Esper and Roe & Voe v. Esper. MMAA is also an organizational plaintiff in both of these other cases, on behalf of its members living with HIV who currently serve or wish to serve in the military.

“Thanks to modern science, there is no legitimate reason to deny servicemembers living with HIV the ability to continue to serve their country without arbitrary restrictions on their assignments and ability to deploy,” said MMAA Legal Director Peter Perkowski. “As the military struggles to meet recruiting goals, the last thing the Department of Defense should be doing is reinforcing harmful stereotypes and discharging highly trained servicemembers based on outdated science.” 

“We look forward to continuing this fight in court to ensure servicemembers living with HIV are treated equally with the dignity and respect they deserve,” said Bryce Cooper, Partner at Winston & Strawn.

The three lawsuits challenge the Pentagon’s discriminatory deployment policies, which prevent service members living with HIV from deploying outside the United States without a special waiver that the military admits it rarely if ever grants. For years, these unjustifiable policies restricted the opportunities of service members living with HIV. Now the Trump administration and the Pentagon are using these same deployment restrictions to justify discharging servicemembers solely based on HIV status. 

The case is entitled Deese & Doe v. Esper.