Quigley Leads Letter Urging Administration to End Discriminatory Military Policy

U.S. Representative Mike Quigley (IL-05), Vice-Chair of the Congressional LGBTQ+ Equality Caucus, along with Representatives Sara Jacobs (CA-53) and Barbara Lee (CA-13), led 31 members of congress in a letter urging the Biden Administration to direct the armed services to permit individuals living with well-managed human immunodeficiency virus (HIV) and Hepatitis B Virus (HBV) to join the military. Members of the Senate also sent an identical letter, led by Senators Chris Coons of Delaware and Kirsten Gillibrand of New York. People living with HIV and HBV can manage their condition with as little as one pill a day and are able to lead very full, long lives. Particularly given the advancements in medicine for both HIV and HBV, these viruses do not in and of themselves make an individual less able to serve, and the risk of battlefield transmission is near zero. There is no longer any plausible argument to deny these individuals the ability to serve their country.

Servicemembers who contract HIV while serving have also long had restrictions placed on their service and career advancement. Following a recent lawsuit, the federal government reversed its position and now permits servicemembers living with HIV to be commissioned as officers and deploy abroad. The letter sent by Quigley, Jacobs, and Lee seeks to build on that victory for all Americans living with HIV and HBV and ensure that those who want to serve their country face no unnecessary barriers to doing so.

"For years I have fought archaic, discriminatory policies that are still present in our government. From the policy preventing gay and bisexual men from donating blood to the current ban on HIV- and HBV-positive individuals joining the military, the reasons for such limitations have no root in science or reason. The U.S. Court of Appeals for the Fourth Circuit affirmed that such a ban is in violation of the equal protection clause of the U.S. Constitution, and holds no rational basis other than to discriminate," said Rep. Quigley. "Ultimately, there is virtually zero likelihood of someone with HBV or HIV passing it to someone on the battlefield, and that fact is strengthened as a result of today's modern medicine, which has empowered individuals with HIV to reach an undetectable viral load. It is time for the stigma around HIV and HBV to end, and this policy to end with it. I am optimistic that the administration will heed this call and move forward with the highest consideration and understanding of the importance of this matter."

"As the representative of the country's largest military community and the heart of San Diego's LGBTQ+ community, I know how harmful HIV and HBV discrimination has been for our military and for my constituents," said Congresswoman Jacobs. "I'm glad the Department of Defense updated its HIV policy for officers and those already enlisted, but it's long past time to end the discriminatory ban for those looking to join the military. The policy currently in place affects force readiness and morale and fails to reflect our military's values of equality, diversity, and inclusion. The Administration should move swiftly to remove barriers to service for qualified individuals living with HIV or chronic HBV. Anyone who is qualified to serve our country, and wants to serve our country, should be able to do so."

"As the Co-Chair of the Caucus on HIV/AIDS, I am dedicated to ending the discriminatory and harmful policies that have restricted people diagnosed with HIV and HBV from living their lives. The policies that prevented HIV- and HBV-positive individuals from joining the military are steeped in discrimination and stigma, not backed by medical science," said Rep. Lee. "The HIV/AIDS epidemic has rocked communities of color and made marginalized communities more vulnerable. It is our responsibility to fight for the rights of these individuals and I am confident that this administration will recognize this discrimination and move forward with ending these predatory policies. It is past time to end our stigma against HIV and HBV and continue our work towards an AIDS-free generation."

"I am pleased that DOJ will no longer defend the constitutionality of regulations barring the deployment and commissioning of service members with HIV who are currently serving in the U.S. military. I now ask that the Biden administration follows this conclusion and allows individuals living with HIV to enlist, to seek appointment, and to otherwise join the U.S. military," said Senator Gillibrand, chair of the Senate Armed Services Personnel Subcommittee. "For far too long, people living with HIV and HBV have faced harmful and discriminatory policies in our armed forces that create unnecessary barriers to serve. The current policy banning these individuals from enlisting or joining a commissioning program is outdated and without merit, and does not reflect the military's commitment to equality, diversity, and the inclusion of all races, ethnicities, religions, and sexual orientations in service. Anyone who is qualified and has a desire to serve their country should be allowed to do so, and I remain optimistic the administration will heed this important call."

"People living with HIV and HBV have too long faced unjust barriers to full participation in our society," said Senator Coons. "I am pleased that those currently serving who have tested positive for HIV will no longer face arbitrary restrictions on their service and career advancement. We applaud the decision to take this important first step and look forward to seeing an opportunity to serve for all who are able and inclined to do so."

"As our nation entered into one of the most difficult military recruiting cycles in more than twenty years, it is even more critical now, to recruit and retain individuals who are capable and qualified to serve, including individuals living with HIV or chronic HBV. Medical technology has vastly improved in the past decades, making transmission rates almost zero and a person's viral load undetectable," said Jennifer Dane, CEO of Modern Military Association of America. "Discriminating against these individuals is not simply unjust, but a threat to national security. The Department of Defense and Department of Homeland Security must act now to remove these barriers to service."

"Scientific evidence shows that people living with hepatitis B do not pose a risk to others, and that hepatitis B does not impact the ability of military students and personnel to serve. By failing to align their current policies with recommendations from the U.S. Centers for Disease Control and Prevention, the Department of Defense has created an inequitable environment where people living with hepatitis B and HIV are vulnerable to being discharged unnecessarily," said Chari Cohen, DrPH, MPH, President of Hepatitis B Foundation. "We urge President Biden to take swift action to ensure that all who wish to serve in the military can do so unimpeded."

"The current policy banning the military enlistment of individuals with well-managed Human Immunodeficiency Virus (HIV) and Hepatitis B Virus (HBV) ignores the science in favor of stigma. It is a disservice to this country's values and to those who would volunteer to protect them. We strongly urge the Biden Administration to allow all who want to serve their country, including individuals with well-managed HIV or HBV, to do so without facing unnecessary barriers," said Human Rights Campaign Senior Vice President Policy and Political Affairs, JoDee Winterhof. "Due to advancements in modern medicine regarding HIV and HBV, individuals living with these viruses can and do lead long and full lives, often requiring just one pill a day to manage their condition. These advancements also mean that the risk of transmission is near zero and the research demonstrates that neither of these viruses makes an individual less able to serve – a fact recently recognized by our nation's military leaders when they began allowing already-enlisted members with HIV to continue their service. We call on the Biden Administration to follow the science and to allow individuals with well-managed HIV and HBV to serve their country."

"Lambda Legal has a long history of defending LGBTQ+ people and people living with HIV against discrimination in the military, including litigation challenging Don't Ask Don't Tell, the ban on open transgender military service, and most recently, successfully challenging the discriminatory restrictions placed on servicemembers living with HIV. It is essential that the Department of Defense take the next step by formally ending discrimination in enlistment for people living with HIV or chronic HBV," said Lambda Legal CEO Kevin Jennings. "There are people living with HIV/HBV who are ready, willing, and able to serve our country that are being harmed every day this ban remains in effect. We urge immediate action by the Biden Administration to remove this remaining discriminatory obstacle to commencing dedicated service defending our country."

A PDF copy of the letter is available HERE and the text of the letter is included below:

Dear President Biden:

We write asking you to direct the Department of Defense (DOD) to allow the enlistment and appointment of people living with HIV who have stabilized in treatment.

As members of Congress, we are pleased to learn that DOJ will no longer defend the constitutionality of regulations barring the deployment and commissioning of Service members with HIV who are currently serving in the U.S. military. The DOJ also informed Congress that it would withdraw its appeals in Harrison v. Austin and Roe and Voe v. Austin, in which the U.S. District Court for the Eastern District of Virginia (EDVA) declared these restrictions unconstitutional and issued an injunction requiring the DOD to allow Service members living with stabilized HIV to deploy and to commission. Concurrently with DOJ's announcement, Secretary of Defense Lloyd J. Austin III issued a letter outlining changes to DOD regulations that apparently were being made to comply with the injunction issued by the EDVA.

We applaud the decision your administration made to abandon the defense of these outdated and discriminatory policies. The summary judgment opinion of the district court and the opinion of the U.S. Court of Appeals for the Fourth Circuit affirming a preliminary injunction in Roe/Voe and the district court's opinion issuing that preliminary injunction are well reasoned and firmly founded in the facts and applicable case law. As the district court held, the categorical bars to the deployment and commissioning of Service members with HIV had no rational basis and served only to discriminate against these individuals in violation of the equal protection clause of the U.S. Constitution. We are glad the DOD has recognized this and chosen to move past these anachronistic policies, a move that many of us have long supported in the form of legislation to revisit federal and state laws and policies that discriminate against people living with HIV.

We now ask that your administration follow to its conclusion the path set forth by the well-reasoned opinions in these cases and allow individuals living with HIV to enlist, to seek appointment, and to otherwise join the U.S. military. The purported justifications for maintaining the bar to entry proffered by the DOD in the litigation in the EDVA — the additional costs of providing HIV-related care to such individuals and the purported incentive that people living with HIV will have to join the military in order to obtain health care — are not worthy of this administration's support. Just as it abandoned the defense of discriminatory restrictions on Service members living with HIV, we ask your administration to abandon these excuses for continuing to prevent people living with HIV who are stabilized in treatment from joining the U.S. military.

Furthermore, the current bar to entry and restrictions on the service of people living with hepatitis B (HBV) are even less justifiable than the restrictions on the service of people living with HIV. A vaccine for hepatitis B — which is provided to all people joining the military — is highly effective and reduces even the merely theoretical risk of battlefield transmission to near zero. Therefore, we ask that you also require the DOD to review and overhaul its regulations, policies and practices regarding the service of people living with HBV to bring them in line with the contemporary scientific understanding of this health condition—including the medical treatments now available to effectively manage chronic HBV—and ensure they do not unfairly discriminate against people living with HBV who simply want to serve their country.

Anyone who is qualified and has a desire to serve their country should be allowed to do so. We ask that you use your authority as Commander in Chief to ensure that every qualified individual living with HIV or chronic HBV is given the opportunity to serve their country.