Judge rules military can’t disqualify enlistees with HIV

The U.S. military can no longer disqualify recruits who have undetectable viral loads of HIV from serving in the military.

U.S. District Judge Leonie Brinkema ruled on Tuesday that the Pentagon’ s arguments barring HIV-positive individuals from military service were not “supported by the evidence.”

“Defendants’ policies prohibiting the accession of asymptomatic HIV-positive individuals with undetectable viral loads are irrational, arbitrary and capricious,” the judge wrote. “Even worse, they contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals.”

Brinkema previously ruled in 2022 that the Defense Department could not prevent service members diagnosed after enlisting from deploying in active duty outside the continental U.S. nor from being commissioned as officers.

Three plaintiffs who were either barred from entry or who were already enlisted and denied promotion due to their HIV status in this recent case argued that the Defense Department’s policy was unlawful based upon the due process of the Fifth Amendment and the Administrative Procedure Act.

In defending its policy, the Defense Department listed that an asymptomatic HIV- positive individual still could pose risk to the military’s mission for they may not be taking their medicine on a regimented basis which could lead to their viral loads rising; HIV which is incurable could be transmitted to other service members either through “blood spatters or transfusions” and those living with HIV could suffer greater comorbidities impacting their health and ability to serve.

The Pentagon also raised concerns that the military would endure “significant costs” in order to pay for the HIV treatment of HIV-positive individuals. Antiretroviral costs are estimated to be between $10,000 and $25,000 per person annually.

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However plaintiffs argued that defense’s cost concern is not based on a rational basis, since the military “does not base accession decisions on the cost of healthcare for any other recruits with any other health condition.”

“Modern science has transformed the treatment of HIV, and this court has already ruled that asymptomatic HIV-positive individuals with undetectable viral loads who maintain treatment are capable of performing all of their military duties,” Brinkema ruled.