A federal appeals court appeared deeply skeptical on Monday of an effort to end the military‘s ban on allowing HIV-positive people to enlist, with the panel expressing concern over the deference the Department of War should receive to set its own health and fitness standards.
The full U.S. Court of Appeals for the 4th Circuit heard arguments in a lawsuit first brought in 2022 by the group Minority Veterans of America along with a trio of HIV-positive people who want to enlist in the military. The group claims that HIV treatment has improved in the decades since the military initially categorized HIV as a health problem that disqualifies someone from enlistment.
The full 15-judge bench of the 4th Circuit grilled Scott Schoettes, a lawyer for the coalition, and appeared uneasy with denying the War Department the deference it seeks to create standards for enlistment. Schoettes discussed the health advancements regarding HIV treatment in the past several decades, claiming that the DOW’s position that HIV is still a health problem worthy of disqualification from service is not backed by evidence. That argument met swift pushback from several judges on the panel.
“The Supreme Court has said where military service is concerned that there’s an obligation of deference that we undertake, and you’re saying we really don’t need to defer at all because it’s all medical,” one of the judges said while questioning Schoettes. “But medical conditions, as they impact military service, are simply not the same as medical conditions that one faces in the ordinary run of civil life.”
Schoettes tried to differentiate health expertise and the specific military expertise for which the DOW is entitled to deference from courts. The judges questioned how, if they were to strike down the broad ban on HIV-positive people, the floodgates would not be opened to similar lawsuits challenging the disqualifying nature of different illnesses and health problems.
“That’s going to draw us into illness after illness after illness, and we’re going to have to say, was it rational to disqualify somebody because of a visual impairment?” one of the judges warned, expressing concern over how such a ruling would create a mess in courts.
“The same tools that you would have us apply to this particular situation are going to be applied to any number of illnesses, and it’s just going to draw the courts into military personnel decisions, which the Supreme Court has said you have no business being in,” he added.
While the panel appeared more skeptical of the group suing the federal government, Department of Justice lawyer Brad Hinshelwood was also questioned about his defense of the policy. Hinshelwood likened the policy to similar bans on people with peanut allergies, high blood pressure, or diabetes, among other conditions that disqualify an applicant from enlistment. When questioned about whether the policy barring HIV-positive people, enacted decades ago, should be revisited due to the advancements in treatment, Hinshelwood noted that the military regularly reviews whether people with various conditions should still be barred from enlistment.
The panel did not indicate how it would rule or give a timeline on when a ruling is expected. A three-judge panel on the 4th Circuit previously sided with the War Department, finding that the military was entitled to set its own health and fitness standards.
The legal battle over the Pentagon’s long-standing policy of excluding people with HIV from serving in the military comes as the Supreme Court could take up another lawsuit over a War Department policy excluding a different group of people from serving in the armed forces.
Late last month, the Trump administration asked the Supreme Court to take up a federal appeals court’s ruling striking down its ban of transgender people from the military. The administration got an interim win at the high court last year on the policy and now is hoping the justices will take up the full case for consideration.
Solicitor General D. John Sauer said the heart of the issue in the transgender case is the military’s ability to have deference to determine mental and physical health standards for troops.
TRUMP ADMINISTRATION URGES SUPREME COURT TO ALLOW TRANSGENDER TROOP BAN IN THE MILITARY
“The authority of the U.S. military to determine who may serve in the Nation’s armed forces is a matter of exceptional importance. Whether the Constitution prohibits the military from exercising that authority by adopting a policy like the one here is a recurring issue, which has arisen before and will likely arise again absent this Court’s review,” Sauer wrote in his petition urging the justices to take up the appeal of the transgender troop ban lawsuit.
The Supreme Court could make a decision on whether to hear arguments in the transgender troop ban lawsuit in the fall.