Federal appeals court unexpectedly reverses itself, reviving challenge to Pentagon HIV policy

Both Schoettes and Perkowski openly live with HIV, which advocates say marks the first time plaintiffs in HIV-rights litigation have been represented entirely by attorneys who are themselves living with HIV.

The Fourth Circuit’s February ruling marked a major setback for HIV advocates and LGBTQ+ legal groups. In that decision, a unanimous three-judge panel reversed a 2024 lower court ruling that struck down the enlistment ban as discriminatory and medically outdated.

Writing for the panel, Judge Paul Niemeyer said courts should give broad deference to military decision-making, describing the armed forces as “a specialized society separate from civilian society” whose judgments were “reasonably related to its military mission.”

The panel concluded the Pentagon had a “rational basis” for maintaining the ban, accepting government arguments that recruits living with HIV could create logistical and diplomatic complications overseas, require ongoing medical monitoring, and impose additional treatment costs on the military.

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

Related: Federal appeals court sides with Pentagon against science, reinstating U.S. military’s HIV enlistment ban

Niemeyer also distinguished the case from earlier Fourth Circuit rulings that blocked the military from discharging or restricting service members already serving with HIV, arguing that enlistment standards presented different legal and operational questions.

During oral arguments in December, judges repeatedly questioned whether courts should override military judgments about troop readiness standards. Attorneys for the plaintiffs countered that the policy rested on outdated assumptions about HIV rather than modern science.

They pointed to decades of medical advances showing that people with well-managed HIV and undetectable viral loads can safely serve in all military roles without transmitting the virus sexually. They also argued that the Pentagon had already acknowledged those realities after earlier court losses forced the military to end deployment restrictions on current service members living with HIV.

In August 2024, U.S. District Judge Leonie Brinkema ruled that the military’s HIV enlistment ban was “irrational, arbitrary, and capricious,” finding that the policy perpetuated stigma while undermining military recruitment goals.

Editors note: A previous version of this story incorrectly stated that Lambda Legal and Winston & Strawn LLP represent the plaintiffs in this case. They no longer do.