Metro Weekly

Advocates ask federal court to stop Pentagon from discharging HIV-positive service members

Without a preliminary injunction, HIV-positive service members face an imminent threat of being discharged

Nick Harrison – Photo: Salma Mohammed and Lambda Legal.

Advocates are challenging the implementation of a new Pentagon policy that would see HIV-positive servicemembers forcibly discharged.

Lambda Legal and OutServe-SLDN, along with pro bono counsel form Winston & Strawn LLP, have filed a motion asking a federal court to block implementation of the Pentagon’s “Deploy or Get Out!” policy, under which people with HIV are considered undeployable — and can therefore be discharged.

The motion, filed as part of Harrison v. Mattis, asks the U.S. District Court for the Eastern District of Virginia to issue a preliminary injunction that would freeze efforts by the Pentagon to discharge HIV-positive service members, take away their health care and other benefits, or deny promotions to those who are serving stateside.

Under the current policy, the branches of the military have been officially ordered to begin processing and discharging HIV-positive service members starting in October. But it does not prohibit various commanding officers from taking immediate action to discharge HIV-positive individuals — meaning that, without the injunction, any service member currently living with HIV faces imminent risk of discharge.

The lead plaintiff in the case, Sgt. Nick Harrison, sued the Department of Defense over the policy after he was denied a position in the Judge Advocate General Corps. Lawyers for Harrison, including representatives from Lambda Legal and OutServe-SLDN, argue that, without the injunction, HIV-positive service members like Harrison will lose their livelihoods and military benefits, and will, through their absence, deprive the military of otherwise qualified individuals who have served honorably.

“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. Together, we must stop the Pentagon from closing its doors to successful and talented service members. 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.”

The “Deploy or Get Out!” policy was part of new, revised guidance from the Pentagon on how best to move forward with those service members who cannot easily be deployed. Despite the fact that HIV is treatable with medication and does not require any additional accommodations that would inconvenience military units, the new guidance continues the previous policy of categorizing all HIV-positive individuals as “undeployable.”

That same policy also categorizes transgender individuals who have been diagnosed with gender dysphoria as “undeployable,” based on what critics say is an outdated and “flawed” understanding of issues related to transgender health care.

Similarly, Harrison’s lawyers also argue that the HIV policy is based on an outdated understanding of HIV and has not been updates to account for the advances in antiretroviral therapy.

“The military’s restrictions are not rationally related to military effectiveness or readiness, because a person’s physical capabilities are not affected by an HIV diagnosis,” they write in their motion for an injunction. “Prior to the availability of antiretroviral therapy in 1996, physical limitations would likely develop once an individual was diagnosed with AIDS. Now, however, someone who receives treatment will not experience physical limitations.

“As a military publication has explained: ‘In the past 30 years, HIV-1 infection has gone from an untreatable disease marked by inexorable clinical progression through extreme debility to death to a treatable disease that is compatible with active service throughout a full career in the U.S. military.’ Even the DoD admitted over a decade ago that ‘[t]here is no evidence that HIV infection, per se, affects physical fitness.'”

“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,” Scott Schoettes, counsel and HIV Project Director at Lambda Legal, said in a statement. “This must end. 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. 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.”

Lambda Legal and OutServe-SLDN are also representing another HIV-positive individual in a companion case known as Doe v. Mattis, where an anonymous service member in the Air Force was denied a commission as an officer due to his HIV status, despite recommendations from medical personnel.

“Since we first filed this case, we have heard from countless service members wanting to share accounts of how the Trump administration’s irresponsible policy is derailing their military careers,” Peter Perkowski, legal director of OutServe-SLDN, said in a statement. “The court cannot stand by while Nick and other service members across the country face imminent harm to their careers, reputations, and livelihood.”

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