Lawyers for an active duty Army sergeant living with HIV want a federal judge to block the Trump Administration’s new policy that would discharge all service members who are HIV positive.
Sgt. Nick Harrison, 41, also sued the Defense Department in May claiming the policy discriminates against people living with HIV.
“It’s important for people to know that someone with HIV can work any job in the world, including being a soldier,” said Scott Schoettes, one of Harrison’s attorneys and HIV Project Director at Lambda Legal, the LGBTQ civil rights and legal group. “Nothing prevents them from safely performing their job.”
In the complaint and preliminary injunction motion, Lambda Legal is collaborating with OutServe-SLDN, a non-profit, legal services, and policy organization “dedicated to bringing about full LGBT equality to America’s military and ending all forms of discrimination and harassment of military personnel on the basis of sexual orientation and gender identity,” according to its website.
The Defense Department has not commented on the complaint or the motion for a preliminary injunction.
The Defense Department has until mid August to respond to the preliminary injunction motion from Lambda Legal, who then will have about two weeks to make its reply. Oral arguments are expected to begin in mid September in front of federal Judge Leonie Brinkeman at the Eastern District Court of Virginia in Alexandria. Brinkeman could rule that day or a few weeks after that oral arguments.
HIV MILITARY POLICY
Under current policy, people with HIV cannot join the U.S. military, but those people diagnosed after their enlistment can remain in the armed forces under strict regulations. A 1991 Pentagon directive bars HIV-positive service members from deploying overseas, but does not prohibit them from serving in other capacities.
Harrison’s complaint, a precursor to a lawsuit, follows the Trump Administration’s announcement in February that a new policy — called “deploy or be removed policy” — would being October 1.
According to the policy, any service member who is unable to be deployed outside of the United States for more than 12 months — meaning all HIV-positive service members, according to established Pentagon policy — would be deemed non-deployable and discharged.
The administration claims the policy would improve military readiness for deployment.
If discharged, Harrison, who has spent 18 years in the military, and other service members living with HIV would suffer irrevocable harm to his career, and lose critical health care and other benefits, according to the complaint.
Harrison served almost two decades in the Army and the National Guard in Oklahoma and the District of Columbia. In 2013, he was accepted for a position in the Washington D.C. National Guard’s Judge Advocate General Corps.
But Harrison’s entrance into the JAG corps was blocked by a series of administrative decisions due to his designation as “non-deployable.” This is despite receiving a perfect score on a medical exam determining his fitness for duty.
“It’s frustrating to be turned away by the country I have served since I was 23 years old, especially because my HIV has no effect on my service,” Harrison said.
In a companion lawsuit, Doe v. Mattis, Lambda Legal and OutServe-SLDN represent 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 and received recommendations from medical personnel.
About 1,200 people living with HIV serve in the U.S. military, according to AIDS United, according to the advocacy group AIDS United.
“AIDS United opposes this and any policy that tries to use military readiness as an excuse to promote an ideology of discrimination and stigma,” the group said in a statement. “This discriminatory decision is rooted in prejudice and the politics of division.”