The Department of Defense Changes Course on Those With HIV

In a landmark decision, the U.S. Department of Defense (DoD) has updated its policies on HIV-positive personnel serving in the armed forces in response to the significant advances in the diagnosis, prevention and treatment of HIV.

Under the new rules, those who have been identified as HIV-positive, are asymptomatic and who have a clinically confirmed undetectable viral load will have no restrictions applied to their deployability or to their ability to commission while a service member solely on the basis of their HIV-positive status. Additionally, individuals will no longer be discharged or separated solely on the basis of their HIV-positive status.

The old policy, which took effect in the early ’80s, kept those who were HIV positive from deploying overseas, as well as being promoted into leadership and management positions. Since the Americans with Disabilities Act of 1990, no employer other than the U.S. military has been legally permitted to discriminate against employees because of their HIV status.

“In view of significant advances in the diagnosis, treatment, and prevention of HIV, it is necessary to update DoD policy with respect to individuals who have been identified as HIV-positive,” said the DoD memorandum, which was released on June 6.

The memo also stated that service members who display laboratory evidence of HIV infection will be evaluated on a case-by-case basis to ensure fitness for continued service in the same manner as any service member with other chronic or progressive illnesses.

“The Department of Defense and Secretary (Lloyd) Austin deserve credit for making the right choice— service members with HIV should be able to remain in the military and enjoy every opportunity for deployment or advancement as any other service member,” said David Stacy, government affairs director for the Human Rights Campaign. “Research has shown for years now that antiretroviral therapy is highly effective in shrinking the risk of HIV transmission to essentially zero. 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.”

The Department of Defense has a representative on the National HIV/AIDS Strategy Federal Implementation Workgroup, which is composed of representatives of 10 federal departments that contributed to developing the strategy and share responsibility for implementing it.

The new rules came about partly in response to a lawsuit by three men who sued the military for discrimination based on their HIV statuses. The judge in that case ruled that the

Pentagon’s classification of HIV as a chronic condition was outdated and did not reflect modern scientific understandings of the virus.

In his order, the judge banned the Pentagon from “separating or discharging” asymptomatic HIV-positive service members with undetectable viral loads solely because they have HIV. Kara Ingelhart, a senior attorney at Lambda Legal, who represented the plaintiffs, noted the rule made perfect sense from a science-medical stigma standpoint but also a policy standpoint.