[JURIST] OutServe-SLDN, Inc. and Lamba Legal [advocacy websites] filed a lawsuit [complaint, PDF] on Wednesday in the US District Court for the Eastern District of Virginia [official website] on behalf of Sergeant Nick Harrison of the US Army Navy against the US Department of Defense [official website] alleging the military's restrictions on persons living with HIV violates the US Constitution's equal protection clause.
The US military issued Instruction No. 6485.01 [text, PDF], which places great restrictions on persons living with HIV, including deployment, medical and promotional restrictions. Most notably, for every branch, except the Navy, those with HIV may only serve in the continental US.
The regulation does not permit termination of persons living with HIV solely for that reason. However, a Retention Policy [text, PDF] issued in February provides that, "service members who have been classified as non-deployable for more than 12 consecutive months shall be discharged absent a waiver." Thus, the policy renders it nearly impossible for persons living with HIV to serve in the military.
The complaint summarizes Sgt. Harrison's story:
After two tours of duty in the Middle East, Sgt. Harrison was diagnosed with HIV at about the same time that he passed the bar exam. Shortly after starting antiretroviral therapy, Sgt. Harrison's HIV was completely under control; his physical capabilities were never affected in any way. A few years later, when he was selected to fill a position as an attorney in the Judge Advocate General Corps for the D.C. National Guard, Sgt. Harrison discovered that outdated military policies regarding people living with HIV would prevent him from being commissioned as an officer and from filling this position based in Arlington, Virginia.OutServe and Lamba Legal charge the DOD with violation of the Fifth Amendment's equal protection clause, saying: "Defendants' accessions policies and practices discriminate impermissibly against people living with HIV both on their face and as applied by barring people living with HIV from enlistment in the military and appointment as an officer in the military based solely on their HIV status."
Along with monetary compensation, the lawsuit requests the court grant injunctive relief and bar the DoD from enforcing the retention policy, and to: (1) retroactively commission Harrison as a "captain" as of September 2014; or (2) "require the Army to waive any age restrictions and to commission Plaintiff now as an officer in the Judge Advocate General Corps for the District of Columbia National Guard at the rank to which he would have advanced as of the conclusion of this litigation had he commissioned as a captain in September 2014."