Some people living with HIV told NBC News they have been denied military service or faced barriers to enlisting, despite a federal judge's ruling in August that found that barring healthy HIV-positive recruits from enlisting was unconstitutional.
Now, as Joe Biden's presidency enters its final days, advocates for people living with HIV are increasingly concerned that his administration will not fully implement the judge's ruling and pass it on to the incoming Trump administration .
The Americans with Disabilities Act of 1990 has prohibited employment discrimination based on HIV status for decades. Given that the military does not fall under the ADA's jurisdiction, the Department of Defense, with nearly 3 million employees, remains an exception.
Rep. Mike Quigley, D-Ill., told NBC News he found the White House's lack of initiative on the matter "very disappointing." This opportunity has been given handily to this administration. "
On August 20, a federal district court judge overturned the military's ban on people living with HIV from enlisting, ruling that it violated the Constitution's equal protection clause. The judge found that excluding people who remain asymptomatic with undetectable HIV viral loads due to effective treatment was "unreasonable, arbitrary and capricious".
In an internal memo on Oct. 18, the Defense Department directed its branches to comply with legal decisions to impose "temporary" but indefinite "exceptions" to the long-standing enlistment ban. NBC News has reviewed the memo. On the same day, the Justice Department filed preliminary papers to appeal the August ruling to the 4th U.S. Circuit Court of Appeals, but the judge's ruling remains in effect.
Multiple sources told NBC News that recruiters failed to comply with Defense Department directives in at least some instances.
NBC News spoke with three people living with HIV who described their recent experiences trying to enlist. One said the military told him he was permanently disqualified, and two others said they were still stuck in a bureaucratic limbo because of their HIV status.
One of the latter two men said a recruiter told him on Tuesday that his HIV status made his application medically disqualifying and that he would have to be disqualified before he could move forward. The individuals spoke to NBC News on the condition that their names not be released to protect their medical privacy.
Scott Schoettes is one of the attorneys representing three HIV-positive plaintiffs who successfully sued to overturn the enlistment policy. He said he and his colleagues worry that with only days left in the Biden administration and the matter unresolved, Donald Trump's Justice Department will end up inheriting the legal baton and appealing the judge's decision.
Army Lt. Nick Harrison was a plaintiff in a previous federal lawsuit involving the potential role of HIV-positive service members currently on active duty. He is a lieutenant in the District of Columbia Army National Guard and serves as a defense attorney for service members. Harrison said he had direct contact with two HIV-positive men who spoke to NBC News, and he also said at least eight people living with HIV recently reported joining a Facebook private group that addressed HIV-related issues. There was a problem with the group. Military (Harrison declined to provide screenshots of these posts, citing the poster's medical privacy).
Harrison, who noted that he was not speaking on behalf of the National Guard, said that based on what he has heard from HIV-positive recruits directly or through private Facebook groups, there appears to be a lack of clear guidance about HIV enlistment for at least some recruits. Personnel are accepting the policy. He described this as a "failure on the part of higher command because they should have pushed it down" the chain of command. He said he had raised the issue with the assistant secretary of defense and urged that person to take action to resolve this bureaucratic quagmire.
"The assistant secretary did nothing," Harrison said.
He noted that the Biden Justice Department could have shut down Trump's opportunity to appeal the August ruling. First, the department must alert Congress of its intention to withdraw the appeal at least 30 days before the end of Biden's term. Without the unlikely intervention of Congress, the department will be able to complete the withdrawal process before Biden leaves office.
"It's a little too late now," Harrison said.
Dallas Ducar, policy director at Fenway Health, a leading LGBTQ health center in Boston, said the Biden administration's inaction contradicts the administration's commitment to equity and public health.
The White House did not respond to a request for comment. The Defense Department said it could not comment on ongoing litigation, and the Justice Department declined to comment. The Trump transition team did not respond to requests for comment, including questions about whether the incoming administration plans to pursue appeals.
One HIV-positive man told NBC News that he sought to join the National Guard through the South Carolina draft office in September after hearing about the August ruling. The man said he disclosed his HIV status to recruiters beforehand and said they assured him it would not be a barrier.
But he said that when he later attended an informational slide presentation at a military entry processing station, the words on one slide stood out: "Absolutely no HIV." Eventually, he said, a recruiter who looked into the matter told him , in fact, contracting the virus did prevent him from enlisting, writing in an email seen by NBC News that he was "permanently disqualified."
"Some communications lead me to believe that people who are HIV-positive may still have a chance to join, so I'm sorry that I got your hopes up," the recruiter wrote.
The HIV-positive man, who was not involved in the lawsuit that prompted the injunction, told NBC News: "I just wanted the opportunity to give back and serve my country. It's just a value that was instilled in me by my parents and grandparents."
When asked about the HIV-positive man's experience, Maj. Carla Evans, South Carolina National Guard public affairs representative, confirmed to NBC News that "the information provided to you by the person you spoke to is correct." "In September 2024, he would not meet medical standards of health," she said.
Although Evans was told that the HIV-positive man received a final rejection email from the recruiter in the first week of December, Evans noted that the bureaucratic process would hear from people living with HIV, according to the October memo. entry request.
Schoettes said that because the district court's permanent injunction against the HIV-exclusive enlistment policy has been in effect since August, the Army would be in violation of the injunction if it barred the South Carolina man from enlisting based on his HIV status.
HIV has been treatable with antiretroviral drugs for nearly three decades. Today, most people infected with the virus only need to take one pill a day. People who receive effective HIV treatment are considered generally healthy and have a life expectancy close to normal. Reliable research shows that when HIV is well suppressed with treatment, it is essentially impossible to spread.
On September 13, Quigley and 22 other Democratic House members wrote a letter urging Defense Secretary Lloyd Austin to direct the Department of Defense to update its draft policy to allow entry of people living with HIV.
The letter called the ruling "long overdue" and echoed the judge's assertion that the draft ban "has no basis in modern science and perpetuates unfair stigma against people living with HIV." Thousands of people living with HIV serve in the U.S. armed forces without incident, the report said.
"There is no evidence that these service members face complications from the disease, nor is there any risk of battlefield transmission," the report said. It further asserted that rejecting HIV-positive recruits "would weaken the U.S. military."
Despite a 12.5% increase in enlistments in the various armed forces from 2023 to 2024, from 200,000 to 225,000, the army has still failed to meet its recruitment targets for the past two years.
"To those who want to serve, my message to them is: Thank you. Don't give up. We won't give up."
Illinois Rep. Mike Quigley
In April 2022, a federal judge overturned a Department of Defense policy that barred people who contracted HIV after enlisting from deploying or being commissioned as officers. Secretary Austin subsequently directed the military to comply with the ruling, and contrary to the current situation, the Department of Justice withdrew its appeal.
HIV advocates had hoped the Biden administration would observe similar patterns following the August ruling on enlistment. However, this is not the case. The Justice Department requested an extension for the first brief in the appeal, pushing the deadline from December 23 to February 21, a month after Trump was inaugurated.
Asked how she thought the Trump administration might handle the appeal, Rep. Sara Jacobs, D-Calif., who signed the letter to Austin, said: “We know Donald Trump will target the LGBTQ+ community, and in fact, he even said that a transgender military ban would be part of his day one agenda.”
The ban on HIV-positive military recruits disproportionately affects gay and bisexual men, since about two-thirds of the estimated 1.24 million people living with HIV in the United States are men.
"Hopefully the administration will be able to get this done in the final days and hours," Quigley said, referring to his desire for stricter guidance on how draftees can implement policies that allow people with HIV to enlist and withdraw the draft. guidance. "But obviously, things are not looking good right now," Quigley said. "To those who want to serve, my message to them is: Thank you. Don't give up. We won't give up."