Judge issues favorable ruling for former service members with HIV

Kevin Deese

A federal judge in Baltimore last week cleared the way for an antibias trial in the case of a midshipman and a cadet who were discharged from the military due to their HIV-positive status.

In a 41-page opinion issued Sept. 2, U.S. District Judge Richard D. Bennett of the District of Maryland rejected a request from the Justice Department to toss out the lawsuit of Kevin Deese and “John Doe.” 

Deese was discharged from the Navy in March 2017 and Doe was discharged from the Air Force in November 2016. The discharges took place shortly before the men could be commissioned as officers.

In an August 2018 lawsuit, Deese and Doe claim the military violated their constitutional rights when discharging them. The men seek reinstatement, maintaining they’re fit for service. They’re represented pro-bono by the LGBTQ advocacy group Lambda Legal, Modern Military Association of America and the law firm of Winston & Strawn, based in Chicago.

The defendants are Defense Secretary Mark T. Esper and various military officials. Their attorney, Neil R. White, didn’t return an email requesting comment.

The military prohibits HIV-positive individuals from enlisting or becoming an officer. Thus, HIV-positive service academy graduates are discharged because they can’t become an officer. But military personnel who acquire HIV while already serving in active duty typically aren’t discharged.

Other disqualifying medical conditions for military enlistment include lupus, rheumatoid arthritis, tuberculosis, malaria, motion sickness, bipolar disorder, epilepsy, muscular dystrophy, sarcoidosis, osteoporosis, Asperger’s, coronary heart disease, Chrohn’s disease, chronic hepatitis, cirrhosis of the liver, myocarditis, scoliosis, Celiac disease, hernia, bleeding hemorrhoids, tachycardia and Reynaud’s disease.

Deese and Doe were discharged despite having the full support of their superiors and military health-care providers who found that both men were fit to serve as officers, according to court papers.

In his Sept. 2 ruling, Bennett addressed the current state of medical science, noting that great strides have been made in keeping HIV undetectable in the bloodstream and asymptomatic.

Bennett wrote that “there is no basis to support the military’s assumption that well-managed HIV renders an individual physically unqualified for service.” He also said the military cannot act in an “arbitrary and capricious manner” regarding HIV-positive service members.

Bennett said if the case reaches trial, it’s possible that the plaintiffs will prevail, noting that Deese and Doe “were exemplary military service academy graduates who — save for their HIV status — would have received commissions [to become an officer] with the rest of their graduating class.”

Bennett concluded by stating that “[t]he military’s policy of withholding officer commissions from HIV-positive service members renders those service members second-class citizens. That is precisely what the equal protection clause [of the Constitution] forbids.”

The case, known as Deese v. Esper, is one of three cases winding their way through the federal courts regarding current and former service members living with HIV. In all three cases, the courts have rejected requests by the government to dismiss the lawsuits as meritless.

Deese told PGN he’s optimistic about returning to the military. “I am optimistic that the legal system will continue to find that the readiness and effectiveness of the military is not being well served by its outdated and discriminatory HIV policies,” Deese said, in an email. “From my point of view, this is all about standing up for my community and for our country’s values by challenging these policies. And on a more individual level, pursuing my commission in this fashion is the last and best option I have to fully live up to the Naval Academy’s mission ‘to graduate leaders who are dedicated to a career of naval service.’”

Justin F. Robinette, an attorney who’s represented many HIV-positive clients, applauded Bennett’s ruling. “Being HIV-positive shouldn’t impact your employment opportunities, including serving in the military,” Robinette told PGN. “Judge Bennett appears to recognize that fact. His ruling makes clear that HIV-positive service members have constitutional rights just like everyone else. I’m hoping Mr. Deese and Mr. Doe will be able to return to the military as soon as possible.”

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Tim Cwiek has been writing for PGN since the 1970s. He holds a bachelor's degree in history from West Chester State University. In 2013, he received a Sigma Delta Chi Investigative Reporting Award from the Society of Professional Journalists for his reporting on the Nizah Morris case. Cwiek was the first reporter for an LGBT media outlet to win an award from that national organization. He's also received awards from the National Lesbian and Gay Journalists Association, the National Newspaper Association, and the Keystone Press.