Red, White & Positive
Amid the Trump Administration’s Firing of Service Members with HIV, Three Lawsuits Challenge the Pentagon’s Longstanding Policies
by Larry Buhl
Photos by Salma Mohammed/Lambda Legal
Two active-duty airmen who were given discharge orders just days before Thanksgiving are suing the Pentagon over its HIV policy and deployment policies. Pentagon policy states that service members living with HIV are not deployable if they first test positive while on active duty, unless they get a waiver. The policy also prohibits anyone with HIV from enlisting or being commissioned.
LGBT civil rights group Lambda Legal, with the assistance of LGBT military association OutServe-SLDN and pro-bono counsel at Winston & Strawn LLP, filed the lawsuit against the Pentagon in the U.S. District Court on behalf of the airmen, who used the aliases Richard Roe and Victor Voe to prevent publicizing their HIV status. Their counsel is challenging the policy that prevents the airmen from deploying to the Middle East, and also challenging a new policy that forces them out of military service for not being able to deploy.
“At the center of our arguments are the regulations against people with HIV deploying should be tossed out, whether it’s a constitutional violation or a violation of the Administrative Procedure Act,” Peter Perkowski, legal director of OutServe-SLDN told A&U.
Both active-duty airmen in the Roe and Voe v. Mattis suit tested positive for HIV last year during Air Force screenings. After starting them on antiretroviral treatments, their doctors determined that they were asymptomatic and physically fit to deploy, and their commanders backed their continued service. But in November the airmen received word that they were “unfit for military service” and discharge procedures were initiated. The stated reason, according to the Air Force, is that the U.S. military bans personnel with HIV from deploying to the Middle East, where the majority of Air Force members are expected to go. The airmen claim the Air Force did not offer them alternative jobs, which both said they would have accepted.
The Department of Defense (DoD) and the Air Force have declined to comment on Roe and Voe v. Mattis, or two other legal cases moving forward regarding the removal of service members with HIV.
Last summer Lambda Legal, OutServe-SLDN, and Winston & Strawn LLP filed a motion for preliminary injunction in Harrison v. Mattis, which involves Sgt. Nick Harrison, who was set to be discharged from the military due to his HIV status.
In a companion lawsuit entitled Doe v. Mattis, Lambda Legal and OutServe-SLDN are representing an anonymous service member living with HIV who the Air Force refused to commission as an officer after he graduated from the Air Force Academy, despite recommendations from medical personnel.
Since they filed this case, Perkowski has heard from numerous service members with HIV who have been threatened with discharge or have had their service restricted as a result of the new policy. Perkowski said that those who serve stateside after an HIV diagnosis are being denied promotions, such as the opportunity to commission as an officer, like Sergeant Nick Harrison.
Harrison, one of the plaintiffs in the combined Lambda Legal and OutServe-SLDN lawsuit, was on track to be a JAG attorney in D.C. when he learned that he had HIV. As with others who have HIV, Harrison could not be commissioned as an officer without a special medical waiver, which he was denied. Two levels of exceptions to the policy were denied as well. Harrison had been deployed to Kuwait with the U.S. Army previously, before his HIV diagnosis.
Harrison told A&U he was bewildered by the military’s decision to keep him out of the JAG Corps given all of the education they had already invested in him.
“When I moved to D.C. and talked to the D.C. National Guard they said I was a great candidate and that they wanted to commission me as a captain based on my experience. They even tagged me as their first choice. I asked for an exception because I was already in the National Guard. I’m of limited use to them now as an enlisted member and not being able to deploy overseas.”
Harrison takes issue with the entire DoD policy of prohibiting HIV-positive service members from deploying, with or without a waiver.
“It surprises me that the military hasn’t updated their policies or looked at any kind of resolution with me or any parties involved.”
An Antiquated Policy
Scott Schoettes, HIV project director at Lambda Legal, said that the focus of all three lawsuits is on overturning the broader policy undergirding all branches, a policy he believes is antiquated.
“The military is slow,” Schoettes said.
It has been over twenty years since meds started changing the landscape of people living with HIV. “On the advocate side we gave [the military] time to work it out from a policy angle. When there was an administration that was friendly, the Obama administration, we thought the best route was to apply pressure on them.”
But the Obama administration had other issues to tackle first, such as ending Don’t Ask, Don’t Tell, and allowing the retention of transgender service members. The HIV policy was pushed to the back burner. Then, when Trump took office, everything went sideways.
“With the Trump administration it was immediately clear that they were hostile; the only way to make them change is to force them to accept people with HIV,” Schoettes said.
Deploy or Get Out
In February 2018 the Trump administration announced a new military policy, known colloquially as “Deploy or Get Out,” which orders any service member who cannot be deployed for twelve consecutive months to be discharged. One exception is pregnant and postpartum service members.
Last February Mattis told the Military Times the rule was about fairness.
“You’re either deployable, or you need to find something else to do. I’m not going to have some people deploying constantly and then other people, who seem to not pay that price, in the U.S. military. If you can’t go overseas [and] carry a combat load, then obviously someone else has got to go. I want this spread fairly and expertly across the force.”
Trump fired Mattis in December and replaced him with Acting Defense Secretary Patrick Shanahan. The President said he is in no hurry to find a permanent replacement for Mattis, and he has not indicated any changes in Department of Defense policies.
Service member advocates don’t believe Deploy or Get Out was implemented specifically to discriminate against military rank and file with HIV, but it does have that effect. If they can’t deploy due to their HIV status, Deploy or Get Out means they have no place in the military.
“Our position is people with HIV should be able to deploy. They wouldn’t be caught up in this policy if DoD regulations restricting deployment were modernized to reflect the current medical science around HIV,” Perkowski said.
“There is no regulation saying you must be discharged if you have HIV. When you are diagnosed with any medical condition, you will be evaluated on your medical condition and your physical ability to do the job. Normally people with HIV go through this process and are retained. Because universally, treatments will keep the HIV in check and you’re as healthy as anyone else and there is no reason to separate you.”
In January the National Institutes of Health (NIH) said definitely that science shows with HIV, undetectable is untransmittable. The DoD, however, is committed to policies based on 1980s science, service member advocates say.
Each branch of the military implements the Pentagon’s HIV policy with slight variations. In 2012, the Navy said that people with HIV could be deployed on large vessels with a waiver. The Air Force and Army technically allow deployment with waiver, at least in writing. “But Army to our knowledge has never granted a waiver, and for the Air Force it’s rare to get a waiver,” Perkowski said.
Schoettes and Perkowski believe that the Pentagon has not provided a rationale for why HIV-positive service members are prohibited from deploying to the Middle East or other places where the U.S. military sees active combat.
An August, 2018 report to Congress lays out the military rationale, such as it is, for excluding HIV-positive service members from deployment. Schoettes, who says the report lacks specifics and a more modern understanding of HIV, summarizes the military thinking:
“Their main reason, and you have to read between the lines on this, is that they can’t guarantee care to someone with HIV in a combat situation. Our belief is it is easy to give care to someone with HIV and they provide care to people with other conditions requiring similar levels of care.
“The second argument about transmission to other service members in the course of battle. But it is highly speculative that there could be any risk of transmission. Even if someone didn’t have an undetectable viral load, someone is surely not going to transmit to another person in battle.
“The third rationale,” Schoettes concluded, “is what they call the walking blood bank, of battlefield transfusions. But people with HIV will not donate blood in that situation just like they don’t donate here at home. I don’t understand that one at all but they talk about it.”
Schoettes points out that other conditions requiring daily medications, such as hyperthyroidism, are not leading to discharges from the military. He said that he’s heard accounts of people with insulin dependent diabetes into the force. “Such a person requires much more ready access to the medication than a person living with HIV.”
Fewer Opportunities for Service Members with HIV
Perkowski said that about 1,200 people with HIV are serving in the military at any given time. “I believe that number is understated, though,” Perkowski added. “Over the past seven years it has been consistently 350 new diagnoses among active, reserve and national reserve every year. About twenty-five percent leave within sixteen months, and half leave within three years.”
Why do they leave? “They’re limited in opportunities, promotions are slowed down,” Perkowski said. “Most are stuck in jobs that they had when diagnosed. The more you do, the more awards you get, that is factored into promotions and opportunities you get. HIV does limit all of those things.”
Larry Buhl is a multimedia journalist, screenwriter, and novelist living in Los Angeles. Follow him on Twitter @LarryBuhl.