Metro Weekly

Two military cadets will be allowed to sue the Pentagon over its ban on HIV-positive service members

Judge rejects government's request to dismiss all charges alleging the HIV policy is outdated and discriminatory

kevin deese
Former military cadet and plaintiff Kevin Deese, now (left) and as a cadet (right) – Photo c ourtesy of Lambda Legal.

On Wednesday, a federal judge denied a request from the Trump administration to dismiss a lawsuit brought by two former U.S. military cadets challenging a policy banning service members with HIV from deploying overseas — thus making them ineligible to continue serving.

The lawsuit, filed in the U.S. District Court for the District of Maryland, alleges that the U.S. Department of Defense’s policy regarding HIV-positive service members is arbitrary, capricious, and based on faulty legal reasoning.

It also alleges that the policy violates the plaintiffs’ right to due process as guaranteed by the Fifth Amendment of the U.S. Constitution, and their right to equal protection under the law.

The plaintiffs in the case, Kevin Deese, a U.S. Naval Academy graduate, and John Doe, a graduate of the U.S. Air Force Academy, sued after they were discharged after having tested positive for HIV, due to the military’s regulations barring people with HIV from commissioning as officers.

Both men were discharged despite having the full support of their superiors and military health care providers who found that both men would be able to continue serving without requiring special accommodations to treat their health condition.

In his decision, U.S. District Judge Richard Bennett, of the District of Maryland, found that Deese and Doe were likely to succeed in several of their claims, and rejected the Trump administration’s request to dismiss all charges. 

“There is simply no basis to hold that officers must be free from HIV even if they are physically capable of service and would otherwise be able to deploy,” Bennett wrote. “The military’s policy of withholding officer commissions from HIV-positive service members renders those service members second-class citizens. That is precisely what the equal protection clause forbids.”

The case, Deese v. Esper, is one of three cases challenging the Department of Defense’s policy on behalf of five service members living with HIV. In all three cases, the courts have thus far ruled in favor of the plaintiffs, rejecting requests by the government to dismiss the lawsuits and allowing the cases to move forward.

That means that Deese and Doe — as well as the other plaintiffs in the two other cases — will get to argue that the policies are based on outdated science and resulted in the denial of their commissions and their subsequent discharges.

“I’m glad that I will get my day in court,” Deese said in a statement. “It’s important that people with HIV be allowed to follow their dreams, including serving their country through military service. Some of the bravest, strongest, and smartest people I have ever met live with HIV, and our armed forces deserve to benefit fully from their resiliency and commitment to service, rather than being held back by outdated and prejudicial policies.

“There is not a job in the world that a person living with HIV can’t do. I hope that this case helps to reset expectations about what is possible for people living with HIV.”

Scott Schoettes, counsel and HIV Project Director at Lambda Legal, which is representing Deese and Doe, said in a statement: “Again and again, federal courts have ruled against the Trump administration’s attempts to shut down these lawsuits vindicating the rights of service members living with HIV to serve their country free from discrimination.

“By now, one would hope the administration would see the writing on the wall and stop defending policies that serve no purpose but to prevent these patriotic young men from serving their country,” Schoettes added. “We will continue prosecuting these lawsuits until the military is forced to bring its HIV-related personnel policies into the 21st century.”

Related: Sgt. Nick Harrison is fighting back against Trump’s outdated HIV military policy

“Thanks to modern science, there is no legitimate reason to deny service members living with HIV the ability to continue to serve their country without arbitrary restrictions on their assignments and ability to deploy,” Peter Perkowski, the legal director of the Modern Military Association of America, which is also representing the plaintiffs, added.

“As the military struggles to meet recruiting goals, the last thing the Department of Defense should be doing is reinforcing harmful stereotypes and discharging highly trained service members based on outdated science.”

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