A federal judge has ruled that the U.S. military cannot bar HIV-positive people whose virus is undetectable from serving in the armed forces[1].
In an opinion released Tuesday in the case Wilkins v. Austin, U.S. District Judge Leonie Brinkema said that, given changes in treatment and previous rulings that allow service members with HIV to stay in the military or deploy, the Defense Department failed to provide evidence that supports its argument that these potential recruits would be a financial, medical or operational burden.
"Modern science has transformed the treatment of HIV, and this court has already ruled that asymptomatic HIV-positive service members with undetectable viral loads who maintain treatment are capable of performing all of their military duties, including worldwide deployment[2]," Brinkema wrote in a 38-page opinion in the Eastern District Court of Virginia.
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The case was brought by Isaiah Wilkins and two other HIV-positive plaintiffs who were seeking to enlist or rejoin the military but were prohibited based on their health conditions. Wilkins, a member of the Georgia National Guard[4], wanted to enlist in the Army[5] Reserve but found out he was HIV-positive during the process.
In a statement issued Tuesday through Lambda Legal, a group that provides legal defense for challenges to LGBTQ+ rights, Wilkins said the ruling was not only a victory for him but for all HIV-positive people who want to serve.
"As I've said before, giving up on my dream to serve my country was never an option. I am eager to apply to enlist in the Army without the threat of a crippling discriminatory policy," Wilkins said.
Brinkema is the same judge who ruled in 2022 that the military could not deny commissions to HIV-positive service members[6] who sought to become officers or discharge those with HIV.
The cases included two airmen facing discharge as a result of their HIV-positive status and an Army National Guard[7] soldier who deployed to Afghanistan and Kuwait while in law school and wanted to become a member of the Army Judge Advocate General Corps.
Shortly after Brinkema released her 2022 opinion, Defense Secretary Lloyd Austin issued a memo[8] to commanders saying they no longer would be allowed to involuntarily separate troops with asymptomatic HIV; restrict them from deploying; or prevent enlisted personnel, cadets or midshipmen with HIV from seeking a commission as an officer.
Improvements in antiretroviral therapy have made it possible for patients with the virus to keep their viral loads to low or undetectable levels. At such amounts, HIV-positive persons don't transmit the virus through sex or needle sharing, according to the Centers for Disease Control and Prevention, and it cannot be spread through saliva, tears or sweat.
A major concern for the Defense Department and military service members regarding serving alongside those with HIV is contact with blood following a traumatic injury or a needle stick.
Brinkema said the concern is "unsupported by the evidence in the record." She added that the case cited by the DoD in supporting this argument is nearly 30 years old and "based on medical science that has changed dramatically."
"Defendant's policies prohibiting the accession of asymptomatic HIV-positive individuals with undetectable viral loads into the military are irrational, arbitrary and capricious," Brinkema wrote. "Even worse, they contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military's own recruitment[9] goals."
From 2018 to 2023, roughly 7 million service members, including the active duty, Guard and reserve, were tested for HIV, and 1,502 tested positive, according to the Defense Health Agency's September 2023 Medical Surveillance Monthly Report.
The majority were men, with just 39 women testing positive. The Army had the highest rate of positive tests, followed by the Air Force[10], Navy[11], Coast Guard[12] and Marine Corps[13]. The Space Force[14] was not included as a separate service for reporting purposes at the time.
The Justice Department can appeal Brinkema's ruling to a higher-level court but did not appeal her 2022 ruling. In an email Friday, a Justice Department official declined to comment and said the department was not able to share any appeals plans.
Related: Airmen on HIV Drug Can Return to Flight Sooner After Change Championed by LGBTQ+ Advisory Group[15]
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