Two advocacy groups are requesting an injunction against a policy they say effectively discharging HIV-positive servicemembers from the military.
Lambda Legal and OutServ-SLDN filed a motion in the U.S. District Court for the Eastern District of Virginia on Thursday against the Trump administration’s “Deploy or Get Out” policy unveiled in February 2018. The new regulations compel the Pentagon to discharge any members of the military who are unable to deploy for 12 consecutive months.
Filing on behalf of two active servicemembers, the groups claim the policy effectively targets HIV-positive troops by forcing them out of the military.
“The military’s accessions and deployment policies with respect to people living with HIV violate the equal protection guarantees of the Constitution,” advocates claimed in this week’s motion, in which Defense Secretary Gen. James Mattis is named as a defendant. “As a group, people living with HIV meet all of the criteria defining a suspect or quasi-suspect class.”
“Therefore, regulations and policies that single them out for disparate treatment should be subjected to heightened scrutiny,” the brief added.
Under current policy, people with HIV cannot join the U.S. military, but those diagnosed after their enlistment can remain in the armed forces under strict regulations. A 1991 Pentagon directive bars HIV-positive service members from deploying overseas but does not prohibit them from serving in other capacities.
If implemented, more than 1,800 HIV-positive service members face being discharged under the policy.
Although the Pentagon was given until October to “begin processing and discharging members who fall within its parameters,” advocates note that the military has already begun discharge proceedings for many of the individuals singled out by the February order. Others have faced severe restrictions on their ability to serve.
Sgt. Nick Harrison, one of the two plaintiffs represented in a pair of federal court cases filed by Lambda Legal and OutServ-SLDN, claimed the policy would close the “doors to successful and talented service members.”
“This case is not just about me,” Harrison said in a statement. “This is about every person living with HIV knowing that they can perform any job in the world, including serving in the military. … I look forward to the day that I can serve my country to the full extent of my abilities, based on my performance and unfettered by unfounded fears and misperceptions about HIV.”
Harrison served for nearly two decades in the Army and the National Guard in both Oklahoma and the District of Columbia. Now 41, he applied for a position in the D.C. Guard’s Judge Advocate General Corps in 2013 and was accepted following a brief application process.
But Harrison’s entrance into the JAG corps was blocked by a series of administrative decisions due to his designation as “non-deployable.” This is despite receiving a perfect score on a medical exam determining his fitness for duty.
“It’s frustrating to be turned away by the country I have served since I was 23 years old, especially because my HIV has no effect on my service,” Harrison said.
In the brief filed before the Eastern Court of Virginia, advocates note the restrictions on people living with HIV are based on outdated misconceptions, as treatment has “changed dramatically” over the past 27 years.
“The military’s purported concerns regarding the risks posed to service members with HIV while deployed are unfounded given current capabilities for medically managing HIV,” the memo stated. “Effective treatment became widely-available in 1996, and today HIV medications generally consist of a single tablet regimen.”
Scott Schoettes, counsel and HIV project director at Lambda Legal, said that a policy based on junk science and decades-old myths “must end.”
“Soldiers, sailors, fighter pilots and marines are seeing their promising careers cut short, their dreams of service shattered and their health jeopardized due to antiquated notions about HIV and the stigma that results,” Schoettes said in a statement.
“If the court doesn’t intervene, the Trump administration will continue to discharge more promising service members living with HIV, denying them the ability to continue serving their country,” he continued. “Every day, people living with HIV are suffering professional setbacks and losing out on career advancement opportunities, and we are asking this court to put an end to these harmful actions.”
Although the Department of Defense has publicly declined to comment on the lawsuit, an unnamed spokeswoman told NBC News earlier this year that the Pentagon’s HIV policies “are evidence-based, medically accurate, and are reviewed regularly and updated.”
HIV-positive service members are “evaluated and managed in the same manner as a service member with other chronic or progressive illnesses,” the source added.
Lambda Legal and OutServ-SLDN are also pursuing legal action on behalf of a second client, referred to in court documents as “Voe.” The plaintiff was denied commission upon graduation from the Air Force Academy in 2012 and ejected from the military. He was diagnosed with HIV during his second year of training.
That case, known as Voe v. Mattis, is pending in the U.S. District Court for the District of Columbia.
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