Federal Judge Rules Pentagon Can No Longer Block People With HIV From Enlisting

The Pentagon building in Washington on Dec. 26, 2011. STAFF/AFP via Getty Images

A federal judge this week ruled that the Pentagon cannot turn away enlistees who are HIV-positive from joining the U.S. armed forces.

U.S. District Judge Leonie Brinkema, in a ruling issued on Aug. 20, argued that the Pentagon ban on such individuals attempting to join the U.S. armed forces would promote what she called the “ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals.”

“Modern science has transformed the treatment of HIV,” the judge wrote, adding that “asymptomatic HIV-positive service members with undetectable viral loads who maintain treatment are capable of performing all of their military duties.”

At issue is a Department of Defense (DOD) policy that prohibits HIV-positive individuals with undetectable viral loads and no symptoms from joining the military. The judge’s ruling effectively struck down the policy unless it is appealed.

The pro-LGBT Lambda Legal fund filed a class-action lawsuit in November 2022 on behalf of Minority Veterans of America and three people who were not able to enlist or reenlist in the military because they are HIV-positive. The group argued in court papers that the Pentagon violated the plaintiffs’ Fifth Amendment rights.

“Defendants’ policies prohibiting the accession of asymptomatic HIV-positive individuals with undetectable viral loads into the military are irrational, arbitrary, and capricious. Even worse, they contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals,” Brinkema, of the U.S. District Court for the Eastern District of Virginia, wrote in her ruling.

In the ruling, the judge also made reference to her 2022 decision that ended the Pentagon’s previous policy that barred service members who were diagnosed with HIV, or human immunodeficiency virus, from deploying in active duty outside the continental United States after they were enlisted.

One of the plaintiffs who filed the lawsuit, Isaiah Wilkins, hailed the ruling this week.

“This is a victory not only for me but for other people living with HIV who want to serve,” Wilkins said in a statement via Lambda Legal. “As I’ve said before, giving up on my dream to serve my country was never an option. I am eager to apply to enlist in the Army without the threat of a crippling discriminatory policy.”

Pentagon’s Arguments

In arguments to the court, attorneys for the Pentagon said that HIV-positive individuals could present problems for the military.

For example, the DOD said that “a deployed HIV-positive service member could experience viral rebound” because of a “lost or destroyed medication” or “insufficient adherence to medication.” If that’s the case, the government argued, that person could transmit HIV to another service member.

“Typically, viral rebound will occur within two-to-eight weeks, but it can occur more quickly,” the government noted, citing Department of Health and Human Services guidelines stipulating that it could occur even within three to six days after the cessation of antiretroviral therapy, a combination of anti-HIV medications.

Antiretroviral therapy used to treat HIV, which can cause AIDS, became widely available during the 1990s. The U.S. Supreme Court in 1998 ruled 5–4 that the Americans with Disabilities Act prohibits discrimination against people who are HIV-positive whether or not they show visible symptoms or were diagnosed with AIDS.

Some individuals also do not properly adhere to antiretroviral therapy drugs, and others may not achieve HIV suppression even if they adhere to the protocol, the government said.

Further, during a combat deployment, an HIV-positive service member could either lose their medication or it could be destroyed.

“If that happens, the service member likely would not be able to immediately obtain their medication regimen from existing supplies, and logistics challenges could make it difficult to replace the medication,” the Pentagon wrote in court papers.

The Epoch Times contacted the DOD for comment on Thursday but didn’t receive a reply by publication time. The Pentagon has not issued a public statement following the judge’s decision, and it’s unclear if the agency will appeal.