Note: As this story was going to press, an announcement from the Department of Justice was expected. Return here for the latest developments.
We were popping champagne corks in April 2022 after a federal district court ordered the Department of Defense (DOD) to allow service members living with HIV to deploy and commission as officers (see July+Aug 2022). As HIV Project Director at Lambda Legal at the time, I co-led the legal efforts to address the military’s discriminatory policies with respect to people living with HIV and was thrilled with this result. It had taken three lawsuits, four years of litigation, dozens of depositions, hundreds of hours of legal work and a trip to the Fourth Circuit Court of Appeals and back, but we had finally secured an injunction forcing the military to stop treating HIV-positive service members as second-class citizens.
Our work, however, was not yet done. For strategic reasons, we had not included a person seeking to enlist among our plaintiffs. And though medical qualification for enlistment is governed by the same standard as medical qualification for commissioning—a policy we did challenge and on which we prevailed—the court did not accept our invitation to rule on the enlistment of people living with HIV.
Nonetheless, with an opinion from the court systematically taking apart the supposed justifications for preventing the deployment and commissioning of service members living with HIV, I had hoped that the rest of the discriminatory aspects of military HIV policy would be dismantled in its wake. A permanent injunction—particularly one against the government—from a federal court is a big deal and sends a strong message that the enjoined party is in the wrong and needs to correct course, so my optimism was not entirely misplaced.
Plus, we now had President [Biden] on our side. We filed the lawsuits against the Trump DOD, but after four years of litigation, the injunction was issued against the now-Biden administration. We previously had secured statements of support for the military service of people living with HIV from the Biden campaign (as well as the Harris campaign), so it seemed likely the White House would use the injunction and the court’s opinion to convince the DOD to stand down on enlistment.
No such luck. The regulations the DOD issued in response to the court’s ruling made clear the military was complying with the injunction in the narrowest way possible—still subjecting service members to an onerous deployment waiver process and denying deployments to some locations—and that it would not change the enlistment policy at all. Incredibly frustrating, but not entirely surprising.
In fact, the legal team had already started talking to individuals living with HIV who wanted to join or re-join the military. By the time we had resolved the issue of attorneys’ fees to close out the old cases, we were ready to file a new case on behalf of three individuals who wanted to join the military.
The DOD cannot have been surprised by the new lawsuit. We made clear in briefing the previous cases that we thought the enlistment ban was illegal—in fact, unconstitutional—for the same reasons the deployment and commissioning bars were illegal. And the court, in declining to rule on the enlistment question in those cases, all but invited us to bring a new lawsuit with a plaintiff who wanted to enlist to obtain a ruling on that issue.
The DOD’s first move was to delay. After we filed the lawsuit, the Secretary of Defense tasked an ad hoc working group with reviewing the enlistment bar, and the Department of Justice (DOJ), as the DOD lawyers, convinced the court to delay proceedings pending the outcome of this review. Unsurprisingly, the DOD made no changes to the enlistment policy based on the recommendations of this working group. The DOD never shared the results of the review, even though the judge specifically asked to see the report, which makes one wonder what the working group in fact recommended.
If the working group recommended allowing people with well-managed HIV to enlist, that recommendation never saw the light of day. Not only did the DOD argue that the additional healthcare costs associated for people living with HIV justified the enlistment bar, they also insisted on re-litigating all of the purported justifications for the deployment bar that the court had rejected as irrational in the previous cases.
HIV stigma is perpetuated by misinformation and misconceptions of the very kind on which the DOD based its policy for years.
We could have prevented most defendants from reasserting such failed arguments, but the government is not subject to the legal doctrine known as claim preclusion. Even though the judge made clear that without new evidence she would rule the exact same way on these issues, the DOD and DOJ plowed right ahead with their plans. Fortunately, we landed on a strategy that allowed us to defeat these stale arguments without engaging them in detail, but it sure was disappointing to see the DOD continue to cling to its outdated ideas about HIV treatment, the “complexity” of monitoring during deployment, and the risks of transmission in a combat zone. Though the DOD had not appealed the court’s ruling and had changed its deployment and commissioning policies accordingly, it had not truly accepted the established science on which that ruling was based.
Even more frustrating than the DOD’s refusal to accept the science of HIV treatment and transmission was its willingness to claim that the costs of providing healthcare to service members with HIV justifies refusing to enlist them. Under the Equal Protection Clause, costs can sometimes be a legitimate reason for treating one group differently from another, so citing these additional costs was a sound legal strategy.
But just because a legal argument is available does not mean it should be asserted. As one of the agencies tasked with executing the National HIV/AIDS Strategy (NHAS), the DOD is ultimately controlled by the president, and it is represented by attorneys at the DOJ—the same DOJ that would sue any other public employer or entity that tried to claim the cost of healthcare for people living with HIV as a legitimate basis for refusing to employ them.
I had hoped that someone within the Biden administration or at the DOJ would realize the distastefulness of incrementally increased healthcare costs as a purported justification for this policy. It is not the fault of people living with HIV that HIV medications are more expensive than most!
The DOD could not come up with solid evidence that healthcare costs for service members with HIV were significantly higher than for other service members or that the defense department relied on healthcare costs as a basis to deny enlistment to any other group, and we were able to defeat this argument. On August 20, the court issued another ruling against the DOD and imposed an injunction forcing the military to accept enlistees with well-managed HIV.
In the meantime, the administration missed a significant opportunity to support people living with HIV and to advance the aims of the National HIV/AIDS Strategy. HIV stigma is perpetuated by misinformation and misconceptions of the very kind on which the DOD based its policy for years. Convincing the military—with the exalted place it holds in the American psyche—to abandon its ill-informed and discriminatory policies before being forced by multiple lawsuits would have conveyed important and accurate messages about HIV treatment and transmission.
As we await the DOD’s reaction to the latest ruling, we can only hope the new administration does not miss this opportunity to eradicate the barriers that still exist and to finally embrace the full military service of people living with HIV.
Scott Schoettes is an attorney and advocate who lives openly with HIV. He engages in impact litigation, public policy work and education to protect, enhance, and advance the rights of everyone living with HIV.