Historic Commissioning of Nick Harrison, U.S. Serviceman Living with HIV

(Washington, DC, August 7, 2023) - Family, friends, fellow service members and mentors gathered for the historic commissioning of Nick Harrison as an officer in the United States Army at the D.C. Armory in Washington, D.C. on August 5.

Statement from CEO Kevin Jennings and Senior Attorney Kara Ingelhart:

"Today is a historic day in Washington, D.C., as we witness the commissioning of Nick Harrison. Although the journey to wearing his officer's bars took several years, Nick's perseverance, along with his legal team and other involved service members, helped to realize his dream of becoming an officer in the District of Columbia Army National Guard."

"We are pleased that patriotic Americans living with HIV currently serving their country, once affected by an outdated, discriminatory policy, no longer face discharge, bans on commissioning, or bans on deployment simply because they are living with HIV. And we look forward to the day when all barriers to service for people with HIV, including those seeking to enlist and serve, have been eliminated."

The case Harrison v. Austin, against the U.S. Army, focused on Nick Harrison, a D.C. Army National Guard sergeant whose application to serve as an officer in the Judge Advocate General (JAG) Corps was denied solely because he is living with HIV. Harrison served in the military since 2000 and was diagnosed with HIV after his second tour of duty in the Middle East in 2012. He was denied a position for which he had been pre-selected because the Pentagon's policy considered service members living with HIV non-deployable and would not allow them to enlist or be appointed officers. Lambda Legal, Modern Military Association of America (MMAA), and Winston & Strawn filed Harrison's lawsuit against the Army and Department of Defense in May 2018.

"I embarked on this journey challenging the military's discriminatory HIV policies through a landmark court case brought by Lambda Legal and the Modern Military Association of America," said Nick Harrison. "I believed in the potential for change from within, in the power of standing up from within a marginalized community to serve, protect, and defend a nation that doesn't always reciprocate in kind. Through years of perseverance and determination, it is with joy that my time has finally come to serve my country."

Background:

In June 2022, Lambda Legal celebrated the Biden administration's announcement that it would no longer defend discriminatory restrictions that prevented service members living with HIV from deploying and commissioning as officers in the U.S. military. Instead of appealing the decision of the district court declaring these restrictions unconstitutional, Defense Secretary Lloyd J. Austin III issued a memorandum outlining changes to the relevant regulations and confirmed that "[i]ndividuals who have been identified as HIV-positive, are asymptomatic, and who have a clinically confirmed undetectable viral load will have no restrictions applied to their deployability or to their ability to commission while a Service member solely on the basis of their HIV-positive status."

The administration's decision and the Department of Defense's (DoD) memorandum reflected the reality that HIV is a chronic, treatable condition and presents no risk to the health or safety of others, even in combat situations. It followed a groundbreaking federal court ruling in April that ordered the DoD - the world's largest employer - to stop enforcing this discriminatory policy. The ruling came in two cases - Harrison v. Austin and Roe & Voe v. Austin, combined for purposes of discovery and argument - for which Lambda Legal served as co-counsel with Scott Schoettes, Esq., Peter Perkowski, Esq., Winston & Strawn LLP, and Greenberg Traurig LLP.

The case Roe & Voe v. Austin, against the Air Force, was filed in December 2018 by the same lawyers on behalf of two active-duty Airmen, identified pseudonymously as Roe and Voe, after the Air Force notified them they were going to be discharged because they could not deploy to the Central Command (CENTCOM) area of responsibility as a result of their recent HIV diagnoses.

In striking down the policy preventing the commissioning of Sergeant Harrison and overturning the discharge of the two airmen, the ruling reiterated the district court's prior holding that the categorical bar to the deployment of service members with HIV is unlawful because it is at odds with current medical science and treats servicemembers living with HIV differently from others with chronic conditions that require medication during deployment. In its decision upholding this preliminary injunction, the Fourth Circuit noted that the risk of HIV transmission in a deployed setting is essentially non-existent, especially if well-controlled HIV and an undetectable viral load are prerequisites for deployment. The opinion of the Fourth Circuit was relied upon extensively by the district court in concluding that the military's bar to the deployment-and therefore commissioning-of service members with HIV is not only arbitrary and capricious but also unconstitutional.

These cases received overwhelming support from several military experts, medical associations and HIV advocates who filed three amicus briefs opposing the deployment and discharge policies when the preliminary injunction was on appeal to the Fourth Circuit in 2019. The friend-of-the-court briefs included three former military leaders-former Secretary of the Navy Ray Mabus, former Secretary of the Army Eric Fanning and former Secretary of the Air Force Deborah Lee James-as well the HIV Medicine Association, the Infectious Disease Society of America (IDSA), AIDS United, and the American Public Health Association.

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and everyone living with HIV through impact litigation, education and policy work. www.lambdalegal.org