Fourth Circuit defers to military on policy disqualifying HIV-positive applicants

RICHMOND, Va. (CN) —The Fourth Circuit backed a military policy in a Wednesday ruling, prohibiting the enlistment of HIV-positive, asymptomatic and undetectable individuals.

The conservative three-judge panel ruled that the military has a legitimate reason for the exclusion, bucking a 2024 injunction from a lower court that prohibited enforcement of the policy. The Fourth Circuit stayed the enforcement of the injunction in December, and by January, the military paused the recruitment of HIV-positive applicants. 

"Medical conditions of all kinds may become relevant as they may limit a soldier's fitness to deploy and implicate other relevant considerations," U.S. Circuit Court Judge Paul Niemeyer, a George H. W. Bush appointee, wrote in the 19-page opinion. "The HIV infection is never eliminated and always presents risks that require additional attention, can cause complications, and does cost money."

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. 

The military argues that 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. The military claims that the lower court's logic would require the qualification of numerous treatable chronic illnesses.

The military claims it is difficult to guarantee access to the necessary medication and testing for positions close to front lines and that, unlike HIV-negative service members, the plaintiffs in this case couldn't donate blood through emergency blood collections that are sometimes required in war. The military also points to foreign countries it has occupied, like Kuwait, which prohibits the entry or presence of individuals with HIV. 

"All of the considerations advanced by the military are reasonable military judgments related to the military's legitimate mission, and because they are rationally related to its legitimate military mission, its policies are valid," Niemeyer wrote. 

When the lower court granted the injunction and ruled that the military violated the equal protection component of the Fifth Amendment's due process clause and the Administrative Procedures Act, it relied on the Fourth Circuit's 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.

Niemeyer said the cases differ, however, because the court considered a categorical ban on deployment of current servicemembers, rather than the rationales undergirding forward-looking policies related to initial entry.

The panel held that the basis of review differs from a civilian context, where a court would apply rational basis scrutiny, which requires the government to show it has a legitimate governmental purpose for treating a certain class differently. The panel said that in a military context, courts rely on the military deference doctrine. 

"At bottom, while applying the civilian rational basis review to determine whether the military's policies are rationally supported, we must yet give even greater deference to the military's explanations and judgments," Niemeyer said. "Its policies must be presumed as valid, and they must be upheld if, under any reasonably conceived facts, they are reasonably related to the classification. And in doing so, we must defer to the military's creation of the classification, its explanations, and its military purposes."

Article I of the Constitution grants Congress the exclusive authority to raise and support armies and to regulate land and naval forces. Article II lists the president as the commander in chief of the Army and Navy. 

"In this scheme, not only does the Constitution assign no responsibility over military matters to the judiciary, but the judiciary especially lacks competence in this area," Niemeyer said. 

Niemeyer cited Rostker v. Goldberg, in which the Supreme Court held that the military's practice of requiring only men to register for the draft was constitutional.

Niemeyer also highlighted Gilligan v. Morgan, a Supreme Court case concerning the Kent State massacre, where the Ohio National Guard opened fire on a crowd, killing four students protesting the expansion of the war in Vietnam to Cambodia.

"It is difficult to conceive of an area of governmental activity in which the courts have less competence," former Chief Justice Warren Burger, a Richard Nixon appointee, wrote in the Gilligan ruling. "The complex, subtle and professional decisions as to the composition, training, equipping and control of a military force are essentially professional military judgments, subject always to civilian control of the legislative and executive branches."

According to the Centers for Disease Control and Prevention, those who regularly take antiretroviral medications can reduce their viral load to the point that it is undetectable in blood tests and unable to spread through sexual transmission.

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 United Kingdom, France and Australia allow those with undetectable loads to join their military ranks. 

"We are deeply disappointed that the Fourth Circuit has chosen to uphold discrimination over medical reality,” Gregory Nevins, Senior Counsel and Employment Fairness Project Director for Lambda Legal, said. “Modern science has unequivocally shown that HIV is a chronic, treatable condition. People with undetectable viral loads can deploy anywhere, perform all duties without limitation, and pose no transmission risk to others. This ruling ignores decades of medical advancement and the proven ability of people living with HIV to serve with distinction.”

U.S. Circuit Court Judges Allison Rushing and Julius Richardson, both Donald Trump appointees, joined Niemeyer in the ruling. The Department of Justice declined to comment.

"Today's Wilkins v. Hegseth ruling is a disappointing development that will lead to increased stigma against people living with HIV and damage the military's ability to recruit and retain service members," Dr. Stephen Lee, National Alliance of State and Territorial AIDS Directors executive director, said. "With modern medications, people living with HIV can achieve an undetectable viral load and are healthy and fit, meaning there is no reason they cannot serve their country. Today's decision is not rooted in science, but stigma and discrimination, and it will lead the United States military to lose qualified enlistees who are able and eager to serve their country."