The Defense Department has officially ended a 1980s-era policy that restricted HIV-positive service members from deploying overseas and being promoted into leadership and management positions.
The updated guidance officially took effect Monday, according to a memo addressed to military leadership from the office of Defense Secretary Lloyd Austin. A judge struck down the decades-old policy in early April.
U.S. District Judge Leonie Brinkema of Eastern Virginia found that the Pentagon’s classification of HIV as a chronic condition did not reflect modern scientific understandings of the virus.
In one of two orders, Brinkema banned the Pentagon from “separating or discharging” asymptomatic HIV-positive service members with undetectable viral loads solely because they have HIV.
The two cases involved three men who sued the military for discrimination based on their HIV statuses. One of the plaintiffs, Army National Guard Sgt. Nick Harrison, who was denied a promotion because of his HIV status, called the Pentagon’s reversal a “generally positive move,” but he said it came only after advocates were forced to resort to “kicking and screaming” in the court system.
“I would like to see them go further,” he said. “At this point, the decision is just basically doing what the judge told them to do. So there’s a lot more space for them to do more.”
Kara Ingelhart, a senior attorney at Lambda Legal, which represented the plaintiffs, said the move “makes perfect sense from a science-medical stigma standpoint but also a policy standpoint.”
“The fact that the military, [which] is the largest employer in the world, not just the country, will no longer be able to treat, categorically, the service members living with HIV differently from others, it’s huge,” she said.
Since the Americans with Disabilities Act of 1990 passed, no employer other than the U.S. military has been legally permitted to discriminate against potential employees because they have HIV. But as noted in the memo Monday, the policy amendment does not change current Pentagon policy denying those with HIV from being able to enlist in the military.
According to the memo, current service members who display “laboratory evidence” of HIV infection will continue to be evaluated on a case-by-case basis, including access to “appropriate treatment” and medical evaluations of “fitness for continued service in the same manner as a Service member with other chronic or progressive illnesses.”
They will not, however, be discharged solely based on their HIV statuses. Military leaders will convene a working group to “develop proposed standards” for case-by-case evaluations, which will consider how long service members must display undetectable viral loads and be symptom-free, the memo says.
The Human Rights Campaign, the country’s largest LGBTQ advocacy group, has long called for the policy reversal, which it listed among 85 recommendations it sent to the incoming Biden administration in November 2020.
“Research has shown for years now that antiretroviral therapy is highly effective in shrinking the risk of HIV transmission to essentially zero,” David Stacy, the campaign’s government affairs director, said in a news release. “To maintain a discriminatory policy against service members living with HIV without the backing of medical evidence was unsustainable, and we’re glad to see our military leaders recognize that.”
Stacy added that the campaign will continue to “push for the same policy to be applied to those who want to enlist.”
“This week’s announcement was a good first step, but as long as some people are still being discriminated against for no good reason, there’s still work to be done,” he said.