By Kara Ingelhart, Lambda Legal Senior Attorney
On World AIDS Day (Dec. 1) Lambda Legal and HIV advocacy organizations across the globe work together to raise awareness of the lived experiences of people living with HIV everywhere. This day is an important opportunity to draw attention to the key strategies to optimize the health of communities impacted by HIV and reduce transmission rates.
Today, there are an estimated 1.2 million people living with HIV in the United States and approximately 87% of those people know their HIV status. Knowing one’s HIV status and making those diagnosed aware of their options for health care is a key part of the work to end the HIV epidemic.
People living with HIV, through taking antiretroviral medications, can reduce the amount of HIV virus in their blood to the point of it being clinically undetectable — meaning there is so little virus present that modern viral load testing cannot detect the virus count in a given specimen of blood. And when HIV is well-managed in such a way, a person can live a healthy life just as long as someone who is not living with HIV.
HIV was once a devastating diagnosis, but in 2023, it need not impair a person’s ability to live a normal life and reach their dreams.
Earlier today, we were in court fighting for the rights of civilians living with HIV who have dreamed of serving their country through military service, but who have been denied the opportunity solely because of their HIV status. Currently, the U.S. military maintains a blanket policy prohibiting the enlistment, appointment, or commissioning of any person living with HIV — regardless of their qualifications for service.
Our lawsuit, Wilkins v. Austin, was filed on behalf of three individual plaintiffs and one organizational plaintiff, Minority Veterans of America. The court’s decision on the summary judgment motions argued today could determine the outcome of the case and the future of our clients like Isaiah Wilkins and all people living with HIV who hoped and planned for a career in the U.S. armed forces.
The Wilkins v. Austin case follows a milestone federal court decision issued last year, which recognized the significance of advancements in HIV science and medicine in the context of another discriminatory military policy.
Nick Harrison’s case challenged the military’s policy not to commission or deploy service members living with HIV, while the Roe case challenged a Trump-era policy that — for the first time — instituted mandatory discharges based solely on HIV-positive status.
Since the onset of the HIV epidemic more than 40 years ago, the military had essentially not obligated discharge of service members if they acquired HIV during a military career. However, at the point of diagnosis, further investment of resources and career growth opportunities (like deployments or commissions) were categorically barred. Those policies were based on long-outdated understandings of the impact of an HIV diagnosis on a person’s ability to contribute to society or even the military.
The task in both those cases was to show that people living with HIV were able to meet military fitness standards, that their care and maintenance of health standards was compatible with military deployments in combat zones, and that the transmission risk of HIV from a person with an undetectable viral status in the rigor and stress of combat would not place other service members at risk of transmission.
This was no small feat. HIV-related biases and misunderstandings of HIV-related science are still far too prevalent in the eyes of both the legal system and broader society. Still, we knew a legal victory would not only impact the careers of service members, but also that tearing down misconceived arguments against the inclusion of people living with HIV could pave the way for broader advances in breaking down barriers in other employment and real-life situations for people living with HIV.
Ultimately, the policies were struck down by a federal court in one of the most significant judicial opinions in over two decades for people living with HIV. The ruling ordered the Department of Defense, the world’s largest employer, to stop discriminating against service members living with HIV and to allow them to deploy and commission as officers in the U.S. military.
That groundbreaking decision represented a landmark moment in the fight to advance the rights of people living with HIV. It was the first win of protections for people living with HIV under the Equal Protection Clause, and it reflected the reality that HIV is a chronic, treatable condition, not a reason to discriminate. This decision showed what science has already long proven: that people living with HIV who are on antiretroviral therapy with undetectable viral loads can have comparable health and abilities to contribute as those who are not living with HIV. In closing its opinion, the court meaningfully quoted from an amicus brief in support of Plaintiffs submitted by retired military leaders:
The United States’ all-volunteer military depends on allowing every citizen who is fit to serve to do so. In our professional military judgment, any policy that discharges willing and able service members based on chronic, but well-managed, medical conditions should be based on the most up-to-date science and be justified by credible— not theoretical—risks. Unfortunately, the Department of Defense’s (“DoD”) categorical restriction on deployment of service members with HIV lacks such scientific support and justification. . . . So long as they adhere to the treatment protocol—which, unsurprisingly, 99% of service members do—persons with HIV do not experience any noticeable effects on their physical health and enjoy nearly the same life expectancy as persons without HIV. More still, those with suppressed viral loads—which includes nearly everyone who adheres to the treatment protocol—cannot pass HIV to others through sexual contact. Despite these tremendous advances in the treatment of HIV, the DoD defends its categorical exclusion based on supposed risks such as the risk of transmission on the battlefield. The latest medical expertise and our own collective military experience show that these risks are more theoretical than actual. Even if such risks exist to some small extent, they do not justify categorically discharging service members who in all other respects are fit to serve. It is more damaging to military readiness to deny those service members the opportunity to deploy where they are needed.”
And now with Wilkins v. Austin, we are back in court to build on that decision. This is significant because U.S. military policy decisions are afforded significant deference when challenged in court. But even under such a standard, the facts and science that support the ability for service members living with HIV can do everything required of someone in the military.
Essentially, any job in the world.
In Wilkins v. Austin, we seek to strike down the last remaining bar to a service career for people living with HIV. In court todayyesterday, we refuted arguments that the nation’s largest employer — with a health care budget of $58.7 billion — should not be obligated to employ people living with HIV because HIV treatment is expensive. We also countered arguments that the military should not be forced to remove its bar on enlistment for people living with HIV because some foreign nations to which we deploy service members have policies hostile to people living with HIV. The same is true for some host nation policies towards women and members of the LGBTQ+ community, yet the military does not bar those historically marginalized groups from distinguished careers in the military.
Harrison v. Austin was a milestone victory in a decades-long legal battle to ensure that we look to science, not stigma when crafting policy that impacts people living with HIV, who are disproportionately LGBTQ+ and people of color.
And today on World AIDS Day, we remain hopeful that the reasoning of the Harrison decision, and the forthcoming Wilkins decision, will go on to combat HIV-related stigma persisting more than 40 years after the start of the epidemic.
Head to the Lambda Legal blog for more write-ups, including recent posts celebrating Trans Awareness Week.