abstract. Service members living with HIV are confronted with a set of policies regulating everything from their sexual behavior to their ability to hold certain jobs. Some of these rules impose criminal liability. Others make it difficult for people living with HIV to enlist, become commissioned officers, or deploy overseas.

The military’s approach was developed in the 1980s, and reflected the bleak outlook for those diagnosed with HIV at the time. Today, however, advances in treatment and prevention have transformed HIV from a deadly disease into a manageable chronic illness—but the military’s policies remain stuck in the past. In addition to being medically unsound, these policies unfairly single out service members with HIV, increase stigma, and are needlessly punitive. They are also vulnerable to legal challenge under the Administrative Procedure Act and the Fifth Amendment. Drawing on interviews with service members, lawyers, and public-health experts, this Comment makes the case for reform.

author. Yale Law School, J.D. 2020. I am grateful to Keerthana Annamaneni, Eugene Fidell, Abigail Fisch, Gregg Gonsalves, Catherine Hanssens, Craig Hendrix, Max Margulies, Peter Perkowski, Alasdair Phillips-Robins, Scott Schoettes, Carlos del Rio, Sam Winter-Levy, and the editors of the Yale Law Journal for their invaluable assistance and thoughtful editing. I am especially grateful to Branden Gutierrez, Sergeant Nicholas Harrison, Staff Sergeant Jeffery Pate, Ken Pinkela, and Petty Officer First Class Christopher Reichle for trusting me to share their stories. All errors are my own.

Introduction

In November 2016, Senior Airman Branden Gutierrez began talking to another airman on Grindr, the location-based smartphone dating application popular among gay men. Realizing they lived in the same barracks, the airman invited Gutierrez to his room. “One thing led to another,” Gutierrez told me in an interview, and they ended up having sex.1

A week and a half later, Gutierrez’s first sergeant told him that the Air Force Office of Special Investigations wanted to speak with him. Confused, Gutierrez agreed to be interviewed, and at first it seemed like a routine matter: the interview began with a series of simple questions, including his name, age, and rank. Then, the agents asked if he wanted to consult a lawyer. “Just to be safe,” said Gutierrez, “I said yes.”

Gutierrez soon learned that he was being charged with failing to disclose his human immunodeficiency virus (HIV) status to the man he had met on Grindr, even though his Grindr profile listed his HIV status as “positive, undetectable,” and, before having sex, the men had discussed an HIV-awareness tattoo Gutierrez has on his left forearm. The charge was based on a written order given to HIV-positive service members requiring them to disclose their status to all sexual partners. Gutierrez was also being charged with assault under Article 128 of the Uniform Code of Military Justice (UCMJ), on the theory that having sex without revealing his HIV status constituted “bodily harm to another person.”2

His lawyer told him that he had two choices: plead guilty and accept a dishonorable discharge, or fight the charges. “I was thinking to myself, I didn’t do anything wrong,” Gutierrez said. “I wanted to prove my innocence.” At trial, in August 2017, a military jury found him guilty of failing to disclose his HIV status but not guilty of assault (perhaps because the amount of HIV in his blood had been undetectable, and his partner had worn a condom, which together put the risk of transmission at effectively zero3). Eventually, Gutierrez was able to get the non-disclosure charge dismissed, which seemed like the end of it. But six months after the trial, in January 2018, Gutierrez’s squadron commander served him a letter of reprimand—a disciplinary action—that resurfaced his alleged failure to disclose his HIV status and declared that his behavior cast “serious doubt as to whether [he] possess[ed] the requisite character for military service.”4 Based on the HIV non-disclosure, and some minor disciplinary issues early in his career, Gutierrez was administratively discharged for “a pattern of misconduct” a few months later.5

Gutierrez’s story is not unique. The roughly 1,200 active service members living with HIV are confronted with a set of policies regulating everything from their sexual behavior to their ability to hold certain jobs.6 Some of these rules, like the one Gutierrez was alleged to have violated, impose criminal liability. Others make it difficult for people living with HIV to enlist, become commissioned officers, or deploy to combat zones—often with little regard for whether the virus actually impairs military readiness or puts fellow service members at risk.

The military’s approach to HIV was developed in the 1980s, at the height of the epidemic.7 In 1985, the Pentagon began a mandatory program of HIV screening, testing all service members and recruits.8 Testing positive for HIV became an absolute bar to joining the military, and if a service member tested positive after enlisting, the expectation was that he would soon become too sick to work.9 This approach reflected the bleak outlook for those diagnosed with HIV. Until the late 1980s, there was no treatment for the virus.10 HIV typically progressed to AIDS—Acquired Immunodeficiency Syndrome—which left patients vulnerable to opportunistic infections like pneumonia, cancer, and tuberculosis.11 And even when the first medicines became available, they were often difficult to take, ineffective, and accompanied by severe side effects.12

But times have changed, and the military’s policies ought to have changed with them. Advances in treatment and prevention have transformed HIV from a deadly disease into a manageable chronic illness.13 Antiretroviral therapy, which requires only one pill a day, works by reducing the number of copies of the virus in the blood, keeping people healthy and making the disease virtually impossible to spread.14 Other militaries have updated their policies to reflect this new reality. The Israel Defense Forces (IDF), for example, recently relaxed its restrictions on HIV-positive service members, drafting them for the first time in 2019.15 Announcing the change, the head of the IDF’s medical services department acknowledged that “[m]edical advancement in the past few years has made it possible for [HIV carriers] to serve in the army without risking themselves or their surroundings.”16 But the U.S. military still prevents people with HIV from enlisting, arbitrarily limits the opportunities available to troops who test positive after joining, and subjects personnel with HIV to strict rules governing sexual behavior. In addition to being medically unsound, such policies unfairly single out service members with HIV, increase the stigma surrounding the virus, and are needlessly punitive. They are also vulnerable to legal challenge under the Administrative Procedure Act and the equal-protection requirements of the Fifth Amendment.

This Comment proceeds in three parts. Part I describes the early history of the AIDS epidemic and lays out the major components of the military’s approach to HIV: (1) regulations preventing people with HIV from enlisting or being commissioned as officers, (2) rules prohibiting service members with HIV from deploying to combat zones, and (3) orders regulating the sexual activities of people with HIV. Part II argues that such regulations are out of step with the latest science and leave personnel with HIV vulnerable to discrimination and abuse. Part III concludes by offering a roadmap for reform. Throughout, the Comment draws on interviews with service members with HIV, highlighting the experiences of those most intimately affected by the military’s approach.