Judge Overrules Military HIV Discharges

Advocates for people living with HIV are taking a victory lap due to a civilian judge’s ruling in a case where three service members were due to be discharged as a result of living with HIV.

U.S. service members who are HIV-positive cannot be discharged or barred from becoming an officer solely because they’re infected with the virus, a federal judge in Virginia ruled. Advocates say it’s one of the strongest rulings in years for people living with HIV.

The cases involved two service members that the Air Force attempted to discharge, as well as Sgt. Nick Harrison of the D.C. Army National Guard, was denied a position in the Judge Advocate General (JAG) Corps.

U.S. District Judge Leonie Brinkema said in a written order dated April 6 that her ruling bars the military from taking those actions against the plaintiffs and any other asymptomatic HIV-positive service member with an undetectable viral load ”because they are classified as ineligible for worldwide deployment … due to their HIV-positive status.”

Service members who are HIV positive cannot be deployed overseas, but that does not seem to matter in this case.

Peter Perkowski, an attorney for the plaintiffs, called it “a landmark victory — probably the biggest ruling in favor of people living with HIV in the last 20 years.”

“The military was the last employer in the country that had a policy against people living with HIV. Every other employer — including first responders — is subject to rules that prohibit discrimination based on HIV status,” he said.

The Military is not just any major employer, but that doesn’t penetrate the arguments put forth by the plaintiffs. Their entire stance is that it is not fair that HIV-positive people don’t have the same career advancement opportunities as those who don’t. Being able to actually be on a battlefield, where blood can be transferred, is apparently an obsolete argument.

In the past, the Supreme Court has been crystal clear that judges are not supposed to interfere with the military’s judgments about which service members should be deployed on which missions. As the Court held in Gilligan v. Morgan (1973), “it is difficult to conceive of an area of governmental activity in which the courts have less competence” than “the complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force.” This was recently reiterated when the Supreme Court ruled against the Navy Seals contesting discharge for refusing the COVID vaccine.

“In this case, the district court, while no doubt well-intentioned, in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments,” Justice Brett Kavanaugh wrote in a concurring opinion.

How is it that people who cannot be deployed are to be kept in the military, then, if the High Brass wanted them discharged?

The Supreme Court is not likely to uphold this if it is appealed.

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