Full Fourth Circuit hashes Pentagon ban on HIV-positive enlistees

The military argues the ban is rational to limit costs and maintain diplomatic peace with other countries, while the plaintiffs argue it fails to reflect modern science. RICHMOND, Va. (CN) — The entire Fourth Circuit heard a challenge to the military’s ban on HIV-positive service members Monday after a three-judge panel of the federal appeals court greenlit the policy in February.The plaintiffs include a trans woman who was honorably discharged from the Army for being HIV-positive, a gay man who was in the Georgia National Guard but cannot join the Army, and a cisgender woman who cannot enlist in the Army because she has HIV, along with the advocacy organization Minority Veterans of America. They argue the policy, which prohibits even those whose treatment renders the virus undetectable, is discriminatory and not rooted in science.A panel comprised of two Donald Trump appointees and one George H. W. Bush appointee revived the policy after it was blocked by a Bill Clinton-appointed federal judge in 2024. U.S. Circuit Judge Paul Niemeyer, a Bush appointee writing for the majority, found the policy compliant with the equal protection component of the Fifth Amendment’s due process clause and the Administrative Procedure Act.At Monday’s en banc hearing in front of all 15 Fourth Circuit judges — nine of whom were appointed by Democratic presidents — they quibbled with attorneys over how much deference they should afford the military in its personnel decisions. Attorney Scott Schoettes, representing the plaintiffs, urged the panel to consider its prior ruling in Roe v. Department of Defense, where the court held that the military acted arbitrarily, capriciously and inconsistently with modern science when it discharged two HIV-positive service members.“This court need not and should not defer to defendants on medical and scientific issues that do not call upon specialized military knowledge that is unique to the defendants,” Schoettes told the panel. “Defendants’ rejection of objective facts and refusal to back down is based entirely in deeply rooted fears that are irrational regarding HIV transmission.”The government counters its policies differ significantly for those already in the military versus those enlisting. U.S. Circuit Judge Harvie Wilkinson framed the case as more than a straightforward medical issue.“It is a question of how medical conditions interact with military conditions,” the Ronald Reagan appointee said. “Medical conditions as they impact military service are simply not the same as medical conditions that one faces in the ordinary run of civil life.”The plaintiffs don’t disagree that the military can set its own enlistment standards, but they argue it must apply them rationally.“HIV, as it always has, is surrounded by misconceptions that are deeply rooted in people’s irrational fears of, in this case, transmission,” Schoettes told the panel.Wilkinson seemed concerned about the floodgate the case could open for those with other medical conditions who want to challenge military policy.“That’s going to draw us into illness after illness after illness,” Wilkinson said. “The same tools that you would have us apply to this particular situation are going to be applied to any number of illnesses, and it’s just going to draw the courts into military personnel decisions, which the Supreme Court has said ‘you have no business being in.’”While others could challenge their exclusion, Schoettes argued they are unlikely to find success because — unlike with HIV — the military has a rational basis for those policy decisions.The military again argued the financial and logistical burdens posed by HIV-positive service members provide a rational basis for their exclusion from the armed forces. The military disqualifies candidates who have high blood pressure, diabetes, asthma, limited motion in a joint, vision and hearing defects, peanut allergies or communicable diseases like hepatitis.In the Fourth Circuit panel’s earlier ruling, Niemeyer emphasized those with HIV require regular medication and testing and cannot donate blood. According to the judge, those are reasons enough to justify the ban.Schoettes said plenty of service members take regular medication and, unlike with diabetes or high blood pressure, those with HIV could go much longer without their medication before it impacted job performance. For testing, Schoettes reasoned that needing a test once every six months would not amount to excessive lost time due to treatment. On blood donations, Schoettes argued the ability to donate blood is not a set criterion for joining the military and those with an AB negative blood type already can’t donate universally.Representatives from the Justice Department did not respond to a request for comment, while the Department of Defense said it has a policy of not commenting on ongoing litigation.The human immunodeficiency virus, which causes acquired immunodeficiency syndrome, or AIDS, became treatable in the U.S. in 1996 when antiretroviral therapy became widely available.Today, the majority of HIV-positive individuals are on a one-tablet regimen that has minimal side effects. The U.K., France and Australia allow those with undetectable loads to join their military ranks.“I think what we need to keep in mind here is that there are people who are fully qualified to serve that want to serve their country and want to make the kind of sacrifice that requires, who are being denied that opportunity on a basis that has no root in the reality of living with HIV today,” Schoettes said.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads