Lambda Legal Celebrates Biden Administration’s Decision to Abandon Appeal of Court Order Striking Down Discriminatory Restrictions on Service Members Living with HIV and Welcomes Pentagon’s Policy Change

Lambda Legal celebrates the Biden administration’s announcement yesterday that it will no longer defend discriminatory restrictions that prevented service members living with HIV from deploying and commissioning as officers in the U.S. military. Instead of appealing the decision of the district court declaring these restrictions unconstitutional, Defense Secretary Lloyd J. Austin III has issued a memorandum outlining changes to the relevant regulations and confirming that “[i]ndividuals who have been identified as HIV-positive, are asymptomatic, and who have clinically confirmed undetectable viral load will have no restrictions applied to their deployability or to their ability to commission while a Service member solely on the basis of their HIV-positive status.” 

The administration's decision and the Department of Defense’s (DoD) memorandum reflect the reality that HIV is a chronic, treatable condition and presents no risk to the health or safety of others, even in combat situations. It follows a groundbreaking federal court ruling in April that ordered the DoD – the world’s largest employer – to stop enforcing this discriminatory policy. The ruling came in two cases – Harrison v. Austin and Roe & Voe v. Austin, combined for purposes of discovery and argument – for which Lambda Legal served as co-counsel with Scott Schoettes, Esq., Peter Perkowski, Esq., Winston & Strawn LLP, and Greenberg Traurig LLP.

“The light at the end of the tunnel is shining a little brighter today for people living with HIV who want to serve in the United States Armed Forces,” said Kevin Jennings, CEO of Lambda Legal. “We are delighted that the Biden administration has made clear that it will no longer defend these discriminatory policies in our courts and that the DoD has made long overdue changes to regulations affecting service members living with HIV. While there is still more work to be done for all people living with HIV who wish to serve, this marks a significant step forward.”

“A positive HIV status alone has no impact on a person’s ability to safely serve,” added 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 “Because HIV disproportionately impacts LGBTQ+ people and people of color, this discriminatory policy is not only outdated, but is also a serious equity issue that has had a significant impact on communities that already face many other systemic barriers to accessing the full range of opportunity in America.”

Following the DOJ’s notice to Congress that it will no longer defend the constitutionality of these restrictions on the military service of people living with HIV, federal law provides the Congress with 30 days to consider whether to pursue an appeal on its own. It is unlikely Congress would take this step, given the sound reasoning of the federal courts that have weighed in on the issue to date and the fact the DoD has now modified the policies in question to comply with the district court’s ruling. 

In April, District Court Judge Leonie Brinkema ordered the Air Force to rescind its prior decision to discharge two Airmen using the pseudonyms Richard Roe and Victor Voe, and ordered the Army to reconsider its decision denying Sergeant Nick Harrison, a member of the D.C. Army National Guard, a commission into the Judge Advocate General Corps. The order enjoined the DOD and the other defendants from separating, discharging, or denying the commission applications of asymptomatic HIV-positive service members with undetectable viral loads based on their purported ineligibility for worldwide deployment due to their HIV-positive status.

“After more than four years of litigation, we are quite pleased the Department of Defense has decided to accept the decision of the district court and to allow service members living with HIV to deploy and to commission,” said Scott Schoettes, one of the attorneys leading these cases. “Now the Pentagon should fully embrace the spirit and reasoning of the ruling to also allow people living with HIV to join the military. There are many people living with HIV out there who would like to serve their country in this way, and it is time to open the door and welcome them.”

The Harrison decision (identified this way to differentiate from the earlier opinions in the companion case) followed a ruling in January 2020 by the U.S. Court of Appeals for the Fourth Circuit in Roe & Voe v. Austin (previously captioned Roe & Voe v. Esper), which upheld a preliminary injunction against the Air Force preventing the discharge of the two Airmen while their case was being litigated. Notably, the Fourth Circuit wrote that “any understanding of HIV that could justify this [deployment] ban is outmoded and at odds with current science.”

The Harrison opinion also echoed the reasoning of an amicus (friend-of-the-court) brief filed with the Fourth Circuit by former military leaders, including former Secretaries of the Army, Navy, and Air Force:

“The United States’ all-volunteer military depends on allowing every citizen who is fit to serve to do so. In our professional military judgment, any policy that discharges willing and able service members based on chronic, but well-managed, medical conditions should be based on the most up-to-date science and be justified by credible—not theoretical—risks.  . . .  It is our professional military judgment that there is no legitimate reason to deny HIV positive service members the opportunity to deploy.”

In striking down the policy preventing the commissioning of Sergeant Harrison and overturning the discharge of the two airmen, the ruling reiterated the district court’s prior holding  that the categorical bar to the deployment of service members with HIV is unlawful because it is at odds with current medical science and treats servicemembers living with HIV differently from others with chronic conditions that require medication during deployment. In its decision upholding this preliminary injunction, the Fourth Circuit noted that the risk of HIV transmission in a deployed setting is essentially non-existent, especially if well-controlled HIV and an undetectable viral load are prerequisites for deployment. The opinion of the Fourth Circuit was relied upon extensively by the district court in reaching the conclusion that the military’s bar to the deployment—and therefore commissioning—of service members with HIV is not only arbitrary and capricious but also unconstitutional.

The Cases

The case against the U.S. Army focused on Nick Harrison, a sergeant in the D.C. Army National Guard, whose application to serve as an officer in the Judge Advocate General (JAG) Corps was denied solely because he is living with HIV. Harrison has served in the military since 2000 and was diagnosed with HIV after his second tour of duty in the Middle East in 2012. He was denied a position for which he had been pre-selected 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. Lambda Legal, MMAA, and Winston & Strawn filed Harrison’s lawsuit against the Army and Department of Defense in May 2018.

The case against the Air Force was filed in December 2018 by the same lawyers on behalf of two active-duty Airmen, identified pseudonymously as Roe and Voe, after the Air Force notified them they were going to be discharged because they could not deploy to the Central Command (CENTCOM) area of responsibility as a result of their recent HIV diagnoses.

Military Leaders, Medical Experts, Advocates Rallied Behind Case

This 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.

Lambda Legal, Scott Schoettes, Esq., Peter Perkowski, Esq., and Winston & Strawn also represent cadets prevented from joining the Navy and Air Force upon graduation from the respective service academies due to their HIV status in a third lawsuit, Deese and Doe v. Austin. The case is pending in the U.S. District Court for the District of Maryland where the court denied the DOD’s request that the lawsuit be dismissed and discovery is underway.

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

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

Read more about Harrison v. Austin here: https://www.lambdalegal.org/in-court/cases/harrison-v-austin