The U.S. military asked the three Republican-appointed judges in the Fourth Circuit Court of Appeals to overturn a lower court ruling forbidding the U.S. Department of Defense (DOD) from kicking out HIV-positive soldiers. The DOD claims that the soldiers create financial and logistical burdens, but the soldiers say those claims are outdated and discriminatory.

“The medical needs of individuals with HIV limit their deployability and the tasks they can perform in military service, and they impose additional costs on the military above those incurred by healthy individuals,” the military wrote in its brief. “Thus, at a minimum, there is a rational basis for the military to treat such individuals differently.”

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The military notes that hundreds of different medical conditions disqualify people from joining the military, including high blood pressure, diabetes, asthma, limited motion, impaired vision and hearing, food allergies, and communicable diseases like hepatitis, Courthouse News noted.

These conditions, the DOD says, can endanger the health of those who have them as well as their fellow soldiers and may not be treatable if battle conditions make medications or healthcare hard to obtain.

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The DOD’s filing also says that HIV-positive soldiers wouldn’t be able to give their blood to other injured soldiers in need. The filing notes that both the Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) forbid HIV-positive people from donating blood for transfusion to others due to the risks of possible HIV transmission.

In August 2024, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia ruled in favor of a trans woman honorably discharged from the Army for being HIV-positive, an HIV-positive gay man, and an HIV-positive cisgender woman who were both forbidden from joining the Army even though they were undetectable due to medication. This group said the DOD’s policy violates the Fifth Amendment’s equal protection clause and the Administrative Procedure Act.

“Modern science has transformed the treatment of HIV,” Judge Brinkema wrote in her 2024 ruling. “Asymptomatic HIV-positive service members with undetectable viral loads who maintain treatment are capable of performing all of their military duties, including worldwide deployment.”

Scott Schoettes, a lawyer with the Lambda Legal Defense & Education Fund who represented the HIV-positive plaintiffs in the more recent appeals court hearing, said the DOD’s policy is based on “misconceptions and irrational fear,” adding, “Why is the military still acting like it’s 1981?”

He also argued that the U.S. government has the financial means to provide medical care to HIV-positive soldiers and that the soldiers are completely capable of fulfilling the physical eligibility and health requirements needed for military service.

The Center for HIV Law and Policy and the American Civil Liberties Union, wrote a brief supporting the HIV-positive plaintiffs, stating, “Denying [military entry] to civilians living with HIV is contrary to ending HIV-related stigma and discrimination.” 

In 2018, the Trump Administration unveiled a “deploy or get out” policy to remove HIV-positive service members, claiming their health condition make them incapable of being deployed worldwide. However, Judge Brinkema blocked this policy as well.

The United Kingdom, France, and Australia allow HIV-positive people with undetectable loads to join their militaries.

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