US Marines | Photo: Flickr/Dvidshub
LGBTI groups in the United States asked a federal court to stop the implementation of a Department of Defense policy, which results in the discharge of HIV-positive service military members.
Lambda Legal and OutServe-SLDN filed an injunction with the court to stop the policy.
The policy, introduced in February, discharges all service members ‘who are non-deployable for 12-consecutive months’. It’s also known as the ‘Deploy or Get Out’ (DOGO) policy.
By default, the military considers HIV-positive service members non-deployable.
As the injunction explains, the military ‘has had regulations restricting the service of people living with HIV since well before the advent of effective antiretroviral therapy’.
With this newest policy, there is now a ‘de facto prohibition against individuals with HIV’.
Meet plaintiff Sergeant Nicholas Harrison
The plaintiff in this case is Nicholas Harrison, who has been serving since 2000. He deployed two times, first in 2006 to Afghanistan, and then in 2011 to Kuwait.
In 2012, he received his HIV diagnosis.
Following that, he passed the Oklahoma bar exam for law, moved to DC, and was offered a spot in the Judge Advocate General (JAG) Corps in the DC National Guard. This meant, however, they had to elevate him to officer — and people with HIV cannot be officers.
Harrison applied for a medical waiver, but was denied.
‘This is about every person living with HIV knowing that they can perform any job in the world, including serving in the military,’ said Harrison.
‘Together, we must stop the Pentagon from closing its doors to successful and talented service members. I look forward to the day that I can serve my country to the full extent of my abilities, based on my performance and unfettered by unfounded fears and misperceptions about HIV.’
Arguments to end the policy
Lambda Legal and OutServe-SLDN outline several arguments for why the court should stay the injunction.
They first state that the policy violates equal protection, guaranteed by the Constitution. The second works in-hand with the first point, arguing that this heightened scrutiny singles people out and perpetuates the stigma against HIV.
It is not unlike Donald Trump’s transgender military ban.
City of Cleburne v. Cleburne Living Center was a 1985 Supreme Court case. It ruled that a city’s zoning order discriminated against people with mental disabilities.
The injunction uses this precedent to defend their stance that the policy is discriminatory.
Finally, they argue that being HIV-positive does not have an impact on military effectiveness.
