Military ban on HIV-positive enlistees could set dangerous precedent, experts warn

The Trump administration's fight to prevent HIV-positive people from enlisting in the military will soon be settled, but not before upending the lives of those who want nothing more than to serve.

The Department of Defense has ordered officials not to train new recruits who are HIV-positive, according to guidance sent by the U.S. Military Entrance Processing Command and obtained by CNN. The order, sent January 16, states "we are pausing shipping any HIV+ applicants and will follow-up in the coming weeks," pending a ruling from an appeals court.

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"As someone who was illegally kicked out of the Peace Corps for testing positive for HIV in 2008, I can tell you that it is extremely demoralizing to be told by your government that you're not fit for service for a condition that can be easily and completely managed with one pill a day," Jeremiah Johnson, cofounder of the HIV Funding Campaign and executive director of PrEP4All, tells The Advocate. "These unscientific policies on HIV also have a tendency to be contagious across government, leading to other discriminatory hiring policies, and influencing recent efforts to defund critical HIV treatment, care, and prevention services."

Courts had previously ruled in Harrison v. Austin and Roe & Voe v. Austin that the military policy preventing the commissioning and retention of HIV-positive troops with undetectable viral loads who face no health limitations and pose no risk of transmission is unconstitutional. This prompted the Biden administration to announce in July 2022 that it would no longer defend the restrictions, which Defense Secretary Lloyd Austin did not appeal, instead ordering all military branches to change their regulations. However, his order did not change the barrier to enlistment.

Several HIV-positive enlistees who are asymptomatic and undetectable, represented by Lambda Legal, then filed a lawsuit againt the rule in November 2022: Isaiah Wilkins, a Black gay man who wishes to join the Army; Carol Coe, a transgender Latina lesbian, identified by a pseudonym, who wants to reenlist after having been discharged; and Natalie Noe, also identified by a pseudonym, a straight woman who wishes to enlist.

A federal district judge ruled in their favor and struck down the ban in August 2024. The case, Wilkins v. Austin, determined that the policy violates the Fifth Amendment’s equal protection clause and the Administrative Procedure Act, as it adds "to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals."

Trump's DOD has appealed the case to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia, which is expected to issue a ruling in the coming weeks. Greg Nevins, senior counsel at Lambda Legal, says that as the court has "approved an injunction we got in the earlier case and made many rulings favorable to us ... the same court should not and probably will not contradict."

"It should be unlawful, and it has been held to be unlawful in every ruling so far," Nevins says. "Specifically, the military's HIV ban was held to be irrational, discriminatory, arbitrary, and capricious regarding asymptomatic individuals living with HIV with an undetectable viral load."

Until the court issues its ruling, those who were recently recruited are in limbo. Reggie Dunbar II, founder and CEO of Poz Military & Veterans USA INTL who himself is a veteran, says that the policy has created a state of confusion throughout the ranks.

Many enlistees have been suddenly iced out with no communication from the Pentagon, such as one friend of Dunbar's whose deployment date was pushed back to October without explanation or warning, leaving him in a "strange mental place." Those he knows currently living with HIV and serving are keeping their status to themselves "almost like they're in a little hush-hush group."

"It is very disheartening and very discouraging in a way because it takes me personally back to days of ACT UP," Dunbar says. "It may be that we have to use some of the same tactics that we did back in the '80s for things to get noticed. Because a lot of times, HIV, a person's sexual orientation, are things that get swept under the rug."

Meanwhile, a federal appeals court in December temporarily upheld the Trump administration's ban on trans people serving in the military by preventing a nationwide injunction from going into effect while a lawsuit against the policy moves forward. Those currently serving have been forced into retirement.

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Advocates worry that the ban on HIV-positive enlistees could strengthen the case against trans troops or provide a legal pathway to ban HIV-positive service members altogether. While the return of "don't ask, don't tell" isn't likely, Dunbar notes "anything can happen" under Trump.

"My grandmother used to say something back in the day about a backdoor way to get to the front," Dunbar says. "I think trying to keep people enlisting out that are living with HIV is a backdoor way to get to the front of possibly putting out people that are living with HIV that are still active duty, as well as transgender members."