Trump Administration Can't Dodge Suit Over Military HIV Policy

(Bloomberg) -- A federal judge denied the Trump administration’s request to throw out a lawsuit over a new military-readiness policy that could result in all service members who are HIV positive being fired starting Oct. 1.

U.S. District Judge Leonie Brinkema on Friday said it’s too soon to tell if the government has a good reason for its new “Deploy or Get Out!” directive, which aims to weed out soldiers who can’t deploy overseas for more than 12 consecutive months for any reason, including HIV status.

"Even though the court must give due deference to the military, that doesn’t mean the military is immune from a court’s review," Brinkema said at the hearing in Alexandria, Virginia. "I’m going to let this case go forward."

But the judge also denied a request by the plaintiffs, including a Washington-based National Guardsman with HIV, for an injunction temporarily blocking the policy while the case progresses. Recent changes to the directive may “undercut" some of the claims in the suit, she said.

The policy, announced by Defense Secretary Jim Mattis in February, doesn’t specifically target HIV-positive soldiers. But the implication was clear to the Guardsman, Nicholas Harrison, and OutServe-SLDN, a network of LGBT military personnel that sued, because an earlier directive put in place at the height of the AIDS crisis bars soldiers with HIV from deploying overseas.

"Clearly the judge understood our case and is concerned about the military’s policy," Scott Schoettes, a lawyer at Lambda Legal, said outside court. "A policy that singles out people with HIV should be scrutinized. They want to contribute to society like everyone else."

The complaint, one of the first of its kind, seeks to exempt HIV-positive service members from the new policy. But it also goes further, seeking to overturn the earlier policy so that Americans with HIV can enlist and become officers. Both policies are based on outdated views on HIV and a lack of awareness about current medical treatment, they say.

Harrison, a 41-year-old Oklahoman whose National Guard unit was deployed to Afghanistan in 2006 and Kuwait in 2011, was diagnosed with HIV in 2012. Under the older policy, Harrison was denied a promotion to officer with the Judge Advocate General’s Corps after the diagnosis. Now he fears the new policy will result in his discharge.

The military in July tweaked the proposed policy to let each branch of the military make its own determinations by Oct. 1 whether HIV-positive soldiers will be deemed non-deployable or "deployable with limitations." If soldiers are deemed non-deployable, they will get an opportunity to fight for their jobs by convincing the military that the need for their skills outweigh any medical concerns, court papers show.

At the hearing, Brinkema noted that Harrison’s health appeared to be fine aside from the HIV he manages with a daily pill, and that the military had paid for his law school education in Oklahoma so he could become a JAG officer.

"Let’s face it," Brinkema said. "The military invested significant money in this man, and he’s already served the country.” Other than that one medical need, she said, there “has to be a good reason why Mr. Harrison is in the position he is in."

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