Federal court declares military ban on enlisting HIV-positive individuals unconstitutional

US District Judge Leonie M. Brinkema, who was appointed to the District Court for the Eastern District of Virginia by President Bill Clinton, ruled on Aug. 20 that Defense Department regulations categorically banning the enlistment of HIV-positive individuals are unconstitutional as a violation of the equal protection requirements of the Fifth Amendment of the Bill of Rights.

The theory of the equal protection challenge is that in the current state of HIV-related medicine in the United States, being HIV-positive should be treated no differently than other medical conditions that the Defense Department does not consider disqualifying for military service.

Proclaiming that “modern science has transformed the treatment of HIV, and this Court has already ruled [several years ago] that asymptomatic HIV-positive service members with undetectable viral loads who maintain treatment are capable of performing all of their military duties, including worldwide deployment, now, defendants must allow similarly situated civilians seeking accession into the United States military to demonstrate the same and permit their enlistment, appointment, and induction.”

Clearly, this opinion allows the Defense Department to refuse to enlist people who cannot show that their HIV viral load is undetectable and that they are taking anti-retroviral treatment, but those who are living with HIV can otherwise apply to join the military once this injunction goes into effect.

The Defense Department adopted regulations concerning AIDS and military service early in the HIV/AIDS epidemic in the 1980s, at a time when effective treatments were not available. Anti-retroviral therapy for HIV became available in 1996, eventually transforming HIV-infection from a disabling and usually fatal illness into a controllable condition. Evidence soon emerged that anti-retroviral treatment can suppress HIV to undetectable levels and reduce the possibility of transmission through exposure to an infected person’s blood and other body fluids to virtually zero. Furthermore, the modality of treatment has been reduced to pills that are easily transmitted and self-administered and periodic check-ups to change medications at the first sign of viral resistance. But the Defense Department had failed to adjust its policy accordingly, leading to a series of lawsuits by HIV-positive service members who were being processed for medical discharges and individuals living with HIV who sought to enlist or re-enlist in the service.

Several of the cases were consolidated before Judge Brinkema in the District Court’s Alexandria courthouse. Her mastery of the evolving facts was approved by the U.S. Court of Appeals for the Fourth Circuit in the cases involving servicemembers, ultimately resulting in a permanent injunction against the policy of automatically discharging service members who tested positive under the military testing program. Still pending after that ruling was the lawsuit on behalf of individuals living with HIV who sought to enlist or to re-enlist after having been discharged.

One of the plaintiffs in this case is a young man who first tested positive while a member of the Army Reserves, attending the U.S. Military Academy Preparatory School, a preliminary to enrolling at West Point. He was recommended for discharge by an Entrance Physical Standards Board due to testing HIV-positive. He was told that because he had resigned from the National Guard to facilitate his entry into the preparatory program, he was considered a new enlistee to the Army who was not covered by the preliminary injunction and thus he was barred under the accession rule. The other plaintiffs were civilians who were denied accession, one of whom is transgender individual who left the service to transition and seeks to reapply to the Army, despite having tested HIV-positive in the interim.

Judge Brinkema incorporated in her opinion the factual findings spelled out in the Fourth Circuit’s opinion, gave the defendants (Defense Department officials) an opportunity to present any new facts and arguments they might have to justify continuing to refuse enlistment to HIV-positive civilians, and determined that the new arguments did not require a different result.

The defendants advanced four sets of “rationales” for their policy: medical/scientific, financial, and foreign relations considerations. They argued “that it is rational for the military to decline to accept individuals presenting ‘known risks,’ which involve purported medical, financial and foreign relations concerns, and they view the accessions bar as being rationally related to mitigating those risks.” The defendants argued in terms of “rationality” because traditionally the federal courts have deferred to “professional military judgment” concerning personnel matters, so the burden was on challengers to a military policy to show that the policy fails the rationality test. Judge Brinkema concluded that all the argued rationales fail that test, pointing out that these rationales were raised in the prior servicemember litigation and were rejected then both by her and by the Fourth Circuit on appeal.

The defendants did not contest the medical evidence. Their main medical argument has been that there is a risk of HIV transmission in the context of emergency battlefield blood transfusions from one servicemember to another, but this has remained only a theoretical argument because there has yet to be a documented case in which such an emergency transfusion has transmitted HIV, even though thousands of transfusions have occurred since HIV became an issue. Furthermore, since servicemembers are tested at enlistment and frequently thereafter, and anyone testing positive is now instructed not to donate blood, the likelihood of such a transmission is even less than it was before anti-retroviral treatment was available.

In the past the military has also argued that some deployments take place to regions, such as the Middle East, where local medical support facilities may be lacking and it may be difficult to provide reliable refrigeration for medications requiring such, but the court pointed out that this has become irrelevant to the issue of providing adequate treatment to servicemembers living with HIV. Pills are now the mechanism for treatment, they can be dispensed in quantities sufficient to cover a servicemember’s posting, they don’t require refrigeration or other special treatment, and HIV presents no greater challenge than other medical conditions that the military does not treat as disqualifying.

The defendants argued that requiring them to provide treatment for HIV-positive enlistees would pose an undue burden on the military budget, but presented no evidence to back up this claim, merely citing cost figures from civilian settings. The cost of treating HIV-infection in the military was shown by the plaintiffs to be no more burdensome than the costs of providing medical support for other conditions that the Defense Department has not considered disqualifying.

The foreign relations argument centered on the contention that “host countries” would object to the presence of HIV-positive service members on foreign postings, but once again the argument was largely theoretical, as the defendants did not present any evidence that this has been an issue since the Defense Department had to change its deployment policies in line with the injunctions that have been in effect in servicemember litigation. The defendants also noted that many overseas postings are to countries that outlaw homosexual conduct, and those countries would presumably object to the presence of LGBTQ service-members, but this argument has also been previously rejected for lack of evidence that it has been a problem since the “don’t ask, don’t tell” policy was repealed during the Obama Administration.

The bottom line for Judge Brinkema was that the defense arguments were “nothing new” and had already been rejected by the Fourth Circuit in the servicemember litigation. Indeed, the Biden Administration had even abandoned the attempt to appeal a preliminary injunction that the Fourth Circuit had approved several years ago. The government has 60 days to initiate an appeal.

Attorneys with Lambda Legal and the law firm of Winston & Strawn LLP represent the plaintiffs.