Metro Weekly

Federal judge allows challenge to Pentagon’s policy on HIV-positive service members to move forward

Sgt. Nick Harrison sued after he was denied a chance to commission as a JAG officer

Photo: Todd Franson

A federal judge in Virginia will allow an Army sergeant ‘s lawsuit challenging the Department of Defense’s policy on HIV-positive servicemembers to move forward.

Following a preliminary hearing on Friday, the court rejected the U.S. government’s request to dismiss a lawsuit brought by Sgt. Nick Harrison of the D.C. National Guard, who is suing the Pentagon over part of the military’s “Deploy or Get Out” policy that classifies HIV-positive servicemembers as “undeployable” and therefore unable to serve.

When the policy was first announced in February, it was feared that HIV-positive servicemembers, like Harrison, would be forcibly discharged or barred from serving.

“All service members with HIV want is for the Pentagon to let us do the jobs we signed on to do,” Harrison said in a statement. “These patriots love this country, volunteered to be soldiers, and look forward to the day that they can serve to the full extent of their abilities, and to not be impeded by misperceptions about HIV.”

The court also rejected a motion by Harrison’s lawyers, with Lambda Legal, to issue an injunction that would stop the military from discharging HIV-positive members. The court found that subsequent modifications of the policy by the Pentagon that would allow such members to remain in the Armed Forces — though on a limited basis — did not necessitate an injunction.

Still, the fact that the lawsuit will be able to move forward represents a victory for opponents of the policy, who fear not only discharge but being denied career opportunities or chances for advancement. For instance, Harrison has been denied the opportunity to commission as a JAG officer due to his serostatus.

“We are quite pleased that the court has denied the government’s motion to dismiss. It was clear that the judge understands the nature of the conduct at issue here, and had some very pointed questions for the government about why they would not allow a person like Nick, whom they have invested quite a bit in, to commission as an officer and serve in the JAG Corps,” Scott Schoettes, counsel and HIV Project Director at Lambda Legal, told Metro Weekly.

Schoettes also noted that while the court denied Lambda Legal’s request for an injunction, that decision can be revisited if the Pentagon does push for discharges of HIV-positive individuals.

“It seemed pretty clear to me that the judge expects the government not to be discharging people with HIV under this policy,” added Schoettes, “and I think if we got word that they were, we could go back before this judge, renew our motion, and I don’t think she’d be particularly happy about them being discharged.

“It’s also clear from the hearing that the judge thinks this is an important issue, and wants the record developed. So we will go back into discovery, and develop the record that is necessary for the court to be able to evaluate whether this policy is discriminatory, as our plaintiff alleged.”

OutServe-SLDN has joined the lawsuit as an organizational plaintiff in the case, in order to advance the interests of its members who are living with HIV.

In a companion lawsuit, Doe v. Mattis, OutServe-SLDN and Lambda Legal are representing an anonymous service member with HIV who was denied the chance to commission as an officer after graduating from the Air Force Academy, despite recommendations from medical personnel.

“Since we first filed this case, we have heard from many service members worried about how Trump’s Defense Department will handle people living with HIV, so we are very pleased the Court denied the government’s motion to dismiss,” Peter Perkowski, the legal director of OutServe-SLDN, said in a statement. “The judge had some very pointed questions for the government about why it made sense for the military to invest as much as it had in Sergeant Harrison and then deny him this position as a JAG officer simply because he is living with HIV.  We look forward to proving that decision was not only nonsensical, but unconstitutional.”

Related: Sgt. Nick Harrison is fighting back against President Trump’s outdated HIV military policy[/crosslink]

John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com

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