Lambda Legal Argues in Court to Halt Pentagon Discrimination Against People Living With HIV

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September 14, 2020
Lambda Legal client Nick Harrison

Today, Lambda Legal and the Modern Military Association of America (MMAA) asked a federal district court to bar the Trump Administration and the Pentagon from discriminating against people living with HIV by denying them the opportunity to enlist, deploy, or commission as an officer. In a hearing on two related lawsuits before the U.S. District Court for the Eastern District of Virginia, lawyers argued the Pentagon’s categorical bar to the enlistment, deployment or commissioning of people living with HIV is unconstitutional and asked the court to order the Department of Defense to allow servicemembers living with HIV to deploy and to serve as officers.

In the two lawsuits, Roe & Voe v. Esper and Harrison v. Esper, Lambda Legal and MMAA, joined by pro-bono co-counsel Winston & Strawn LLP, represent two Airmen facing discharge and a member of the D.C. Army National Guard being denied a commission, simply because they are living with HIV.

“Today, we asked the court to recognize what the government refuses to acknowledge, that people living with HIV are as capable, safe and healthy to serve in the military as any other person. It is discriminatory and unconstitutional to deprive these servicemembers from serving their country because of outdated science and continuing prejudice.” said Scott Schoettes, Counsel and HIV Project Director, Lambda Legal, the nation’s largest organization committed to full recognition of the civil rights of LGBT people and people living with HIV“It’s unacceptable that even in the face of tremendous medical advances, the Trump Administration is erecting new barriers to the military service of people living with HIV. These discriminatory actions deny important career opportunities and perpetuate stigma.” 

The case against the U.S. Army was filed in May 2018 on behalf of Nick Harrison, a sergeant in the D.C. Army National Guard who was denied the opportunity to serve as an officer and a position in the Judge Advocate General (JAG) Corps because he is living with HIV. Harrison is a veteran of two tours of duty in the Middle East, but was denied the position because current Pentagon policy considers service members living with HIV non-deployable and will not allow them to enlist or to be appointed as officers.

“It feels very dehumanizing and hurtful to be discriminated against just because of our HIV status when we just want to serve and defend this country,” plaintiff Nick Harrison said. “The Pentagon’s policy is rooted in misconceptions, stigma and fear. I’ve been deployed into combat overseas and served honorably in the military for years, and I can guarantee you that there is no job that a person living with HIV cannot perform, including being a soldier.” 

The case against the U.S. Air Force and Department of Defense was filed in December 2018 on behalf of two active-duty Airmen, identified pseudonymously as Roe and Voe. In 2018, the plaintiffs received notification just days before Thanksgiving, denying their discharge appeals despite compliance with fitness assessments and medical treatment, as well as strong support from commanding officers. Nevertheless, the plaintiffs were found “unfit for continued military service.” In February this year, the Fourth Circuit upheld a preliminary injunction granted by the district court preventing the Pentagon from discharging the two Airmen, after the Department of Defense appealed the lower court decision. 

The two 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 is rarely, if ever, granted. For years, these policies have restricted the opportunities of service members with HIV. Now these same deployment restrictions are being used to justify separating service members solely based on HIV status. 

MMAA is also an organizational plaintiff in Roe & Voe to advance the interests of its members who are living with HIV and serving in the military.  

“There is no longer any legitimate reason for the military to discriminate against service members living with HIV,” said Peter Perkowski, legal and policy director for the Modern Military Association of America (MMAA) — the nation’s largest LGBTQ military and veteran non-profit organization. “It’s far past time for Department of Defense policies to catch up with the reality of modern science. We believe the Court understands this and will rule in favor of our service members living with HIV."

In July, several military experts, medical associations and HIV advocates filed three amicus briefs with the Fourth Circuit opposing Trump administration’s deployment and discharge policies with respect to service members living with HIV. The medical brief argues the policies are irrational and discriminatory given the strides in HIV diagnosis and treatment that suppress viral load to undetectable levels – thus eliminating the risk of transmission and allowing people to return to health and lead full lives. The brief from HIV advocates and public health experts discussed the effects of HIV stigma and discrimination in combatting the HIV/AIDS epidemic. And the friend-of-the-court brief from former military leaders—including former Secretary of the Navy Ray Mabus, former Secretary of the Army Eric Fanning and former Secretary of the Air Force Deborah Lee James—explains that there is no military justification for preventing service members with HIV from deploying into combat positions.

In a third similar lawsuit, Deese and Doe v. Esper, Lambda Legal and MMAA, again joined by Winston & Strawn, represent two cadets that were rejected from the Navy and Air Force upon graduation based on their HIV status. On September 3, 2020, the U.S. District Court for the District of Maryland denied the Trump Administration’s request that this lawsuit be dismissed.

Joining Lambda Legal attorneys Scott Schoettes and Kara Ingelhart on these cases are Peter Perkowski, Legal Director, MMAA, Drew Sommer of Greenberg Traurig, and Julie Bauer, John W. Harding, Lauren Gailey, Jason Pesick and Allie Hemmings with Winston & Strawn. Geoff Eaton from Winston argued the appeal to the Fourth Circuit, and Bryce Cooper is leading on Deese and Doe.