Judge Rules US Army Cannot Fire HIV-Positive Troops | Health


RICHMOND, Va. (AP) — HIV-positive U.S. service members cannot be discharged or barred from becoming an officer solely because they are infected with the virus, a federal judge in Virginia has ruled. Supporters say it’s one of the toughest rulings in years for people living with HIV.

The cases involved two service members whom the Air Force attempted to fire, as well as Sgt. Nick Harrison of the DC Army National Guard, who was denied a position with the Judge Advocate General (JAG) corps.

U.S. District Judge Leonie Brinkema said in a written order dated April 6 that her ruling bars the military from taking these actions against the plaintiffs and any other asymptomatic HIV-positive service members with an undetectable viral load “because they are classified as ineligible for global deployment…due to their HIV status.

Peter Perkowski, a lawyer for the plaintiffs, called it “a historic victory – possibly the biggest ruling for people living with HIV in the past 20 years”.

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“The army was the last employer in the country to have a policy against people living with HIV. All other employers – including first responders – are subject to rules prohibiting discrimination based on HIV status,” he said.

The Department of Defense did not immediately respond to an emailed request asking for comment on the decision or whether it intended to appeal.

The airmen, identified by pseudonyms in the 2018 lawsuit, argued that major advances in treatment mean they can easily receive appropriate medical care and pose no real risk of transmission to others.

In 2020, the Richmond-based 4th United States Circuit Court of Appeals upheld a preliminary injunction barring the Airmen’s dismissal. In its ruling, the three-judge panel said the military’s rationale for banning the deployment of HIV-positive service members was “outdated and at odds with current science.” The appeals court decision left the injunction in place while their trial was heard.

The Justice Department argued before the 4th Circuit that the Air Force determined that the two Airmen could no longer perform their duties because their career areas required them to deploy frequently and because their condition prevented them to deploy to the U.S. Central Command area of ​​responsibility, where most Airmen are expected to depart. Central Command, which governs military operations in the Middle East, North Africa and Central Asia, prohibits HIV-positive personnel from deploying without waivers.

The DOJ acknowledged that the treatment reduces the risk of HIV transmission, but said the risk is magnified on the battlefield where soldiers can often come into contact with blood.

An attorney for the Airmen argued at a 2019 hearing that the risks of HIV transmission in combat are infinitesimal and should not limit their deployment or lead to their dismissal.

In its written decision, the 4th Circuit panel said a deployment ban might have been justified at a time when HIV treatment was less effective in managing the virus and reducing the risk of transmission.

“But any understanding of HIV that could justify this ban is outdated and at odds with current science. Such outdated understandings cannot justify a ban, even under a deferential standard of review and even giving proper deference to the professional judgments of the military,” Judge James Wynn Jr. wrote in the unanimous decision of 2020.

Brinkema said in the written order this month that she had temporarily sealed her decision in the case to give both parties the opportunity to request redactions within 14 days. The judge ordered the Secretary of the Air Force to rescind the decision to fire the two Airmen and ordered the Army to rescind its decision denying Harrison’s request for a JAG commission and to reassess these decisions in the light of his decision.

Kara Ingelhart, senior counsel at Lambda Legal, one of the groups that filed the lawsuits, said in a press release that the decision knocked down a barrier preventing people living with AIDS from becoming officers and “ends discrimination continues of the army”. against the approximately 2,000 service members currently serving while living with HIV.

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