U.S. Military’s Ban Against HIV-Positive People Goes to Court
One cold winter morning in 2008, 8-year-old Isaiah Wilkins decided to try on his mother’s National Guard uniform, something he always wanted to do. She was away at training in Texas, but she kept an extra uniform at home in Temple, Georgia.
Young Isaiah climbed up to the attic of his parents’ single-story house and spotted the blue 30-gallon bin where his mother stored her military clothes. He unclicked the clips on the sides, lifted the lid, and rummaged through the neatly organized items. After carefully shuffling through a few patches and her combat boots, he spotted her uniform.
He unfolded the garment and draped it against his own body to see if it fit. He turned it around and moved his fingers across the digital camouflage pattern, feeling the stitched texture of the American flag on the right sleeve. The boy was captivated. He quickly slipped it on. He was already almost as tall as his mom, 4’11”, so it fit perfectly.
Isaiah ran to the bedroom where his stepfather, Daren, was sleeping. He woke him up. He didn’t just want to show him the uniform, he wanted Daren to drive him to the nearby Waffle House, 10 minutes down the road. It was where all the local veterans gathered for coffee and breakfast in the early morning.
They sat down at the restaurant chain and Isaiah ordered two classic waffles with butter and maple syrup. While he waited for his breakfast, Isaiah walked from table to table, chatting with veterans. Most had fought in the Vietnam War. They smiled and chuckled at the uniformed 8-year-old. The fact that someone so young was taking an interest in them was both amusing and flattering. The child was spellbound by their stories of how they risked their lives for the freedom of Americans. He wanted to be just like them one day, telling his own stories about how he was a hero, fighting for his country.
The military was also in his blood. On his mother’s side, he had ancestors who fought in every American military campaign dating back to the Civil War. His mother, Stephanie Womacks, was in the Georgia National Guard. Before that, she was a communications specialist in the Army, and had been deployed to Saudi Arabia during the First Gulf War in 1991.
By the time he was a teenager, Isaiah knew he wanted to become a Blackhawk helicopter pilot in the Army. He dreamed of flying the aircraft that would land on a battlefield and help save another soldier’s life.
He also knew that he was gay and that Temple was no place for a gay man. He wanted more for himself. The military, he thought, would be his way out.
By age 17, Wilkins dropped out of high school, earned his GED, and enlisted in the Georgia Army National Guard. He enrolled in Georgia Military College (GMC) and took out a loan contingent upon him completing eight years of military service.
After two years, he performed so well at GMC that West Point took notice. The famed military academy accepted him into its prep school, a one-year program to sharpen his academics, before matriculating into the four-year academy as a freshman. As part of the agreement, he signed an additional one-year contract with the Army as a new enlistment. He was overjoyed. He had made it out of his small, rural Georgia town and was going to attend West Point and serve his country.
The West Point Military Academy, in West Point, N.Y.
Getty Images
But his dreams were soon shattered. Shortly after he entered West Point Prep, he tested positive for HIV, was discharged, and was banned from re-enlisting. His paperwork reflected that he simply finished his one year contract with West Point, not that he was discharged for HIV.
Living with HIV automatically disqualifies a person from joining the armed forces. That means there’s no record of the number of people who have intent to enlist but don’t even try because they know there’s no point, due to Department of Defense (DOD) policies.
And those policies cost more to those rejected than a professional opportunity. At his exit screening from the Army, Wilkins was diagnosed with a combination of anxiety and depression, which he attributes to his discharge. Additionally, he is expected to pay back $16,427.42 to the government, because he only completed three of his eight years of his service commitment before being discharged.
Despite the ban, Wilkins has not given up on his dream. On Nov. 10, 2022, Lambda Legal, a legal organization focused on LGBTQ+ civil rights, filed a class-action lawsuit against DOD over its policy banning civilians living with HIV from joining the military. Wilkins is the named plaintiff.
This isn’t Lambda Legal’s first fight against the military’s HIV policy. In April, it won a class-action lawsuit against DOD forcing it to change part of its HIV policy. Previously, the roughly 2,000 service members living with HIV (SMLWH) were banned from deploying or commissioning as officers, effectively stunting their military careers. A federal judge found that this part of the policy was in violation of the Equal Protection Clause of the U.S. Constitution, forcing DOD to update its policy in June 2022. Current military personnel with an undetectable viral load can no longer be denied the opportunity to deploy or to commission based on HIV status.
However, civilians with an undetectable viral load are still not allowed to enlist. Lambda and Wilkins are now suing to repeal this last piece.
In the meanwhile, the DOD’s rollout of its policy change has not been smooth. Sergeant Nick Harrison, the plaintiff in that landmark victory served in the military for 22 years, including two combat tours of duty: one in Afghanistan in 2006 and another in Kuwait in 2011. In 2013, he was offered his dream job in the National Guard: the JAG position (a military lawyer). But, in order to take it, he needed to be commissioned as an officer—a commission he was denied because of his HIV status.
After his court victory, the military was mandated to re-evaluate Harrison’s original application from 2013. But his National Guard recruiter informed him that he would need to reapply with a new application. Harrison didn’t know why, and DOD has not facilitated a set of formal next steps. “No one has shown up to help me. There is no process for how this should be resolved,” Harrison says. Indeed, a spokesperson for DOD, Charlie Dietz, says, “The DOD is not providing guidance to the services on this at this time.”
The policy that impeded the careers of men like Harrison and Wilkins has also caused the military to lose talented personnel. According to a 2015 study by the Armed Forces Medical Surveillance Monthly Report, the military’s own peer-reviewed journal, at least 25% of SMLWH leave the service within the first 16 months of diagnosis.
Read more: For HIV/AIDS Survivors, COVID-19 Reawakened Old Trauma—And Renewed Calls for Change
Wilkins can’t forget the day he received his HIV diagnosis. He was one month into his time at West Point Prep standing in front of an obstacle course on a rainy August day. It was part of a grueling physical fitness test he had to complete with his team of other plebes: jumping hurdles and crawling through mud; pushing a Humvee up a hill; and then running a mile—all in the rain.
He was mentally preparing, breathing in the smell of wet grass, when he got a tap on his shoulder. “Come with me, cadet. You have a doctor’s appointment,” the sergeant said. Wilkins was reluctant to leave his team and go to the clinic. They were relying on him. He asked the sergeant if it was urgent. “Now,” the sergeant replied. Wilkins was confused. What could this doctor’s appointment be about and why was it so time-sensitive? He had just taken his entrance physical exam, and he felt strong and healthy.
He followed the sergeant for a few minutes before he realized that they were not going to the clinic. They passed the break room just outside of the commandant’s office. It was usually buzzing with chatter, but it was uncomfortably silent now. Four officers stood inside watching him in silence.
Inside the office, the commanding officer of the school hospital and a public nurse were waiting for him. There was an exact model of the helicopter he dreamed of flying, a UH60 Black Hawk, on the desk. The office also had a big window overlooking the track that was part of the obstacle course. He yearned to be with his teammates. The officer introduced herself. “On the first day you were here, you had some blood drawn,” she began. “We test for a variety of things.” She was trying her best to make him comfortable, but he was feeling knots in his stomach. “We got the results of your blood test back. You tested positive for HIV,” she said.
“Can I have a moment?” Wilkins asked. It wasn’t so much a question. He stood up and stepped out of the office and into the hallway. He lifted up his hands to cup his face and began sobbing. He didn’t know much about HIV. All he knew was that it was the one thing as a gay man he never wanted. His only understanding of it was that people with HIV die painfully and alone. He composed himself and returned to the office. “Will I be kicked out for this?” he asked. “We will address everything one thing at a time,” said the nurse.
The nurse told him that people living with HIV, who are treated, live long and healthy lives—and then made him list every sexual partner he ever had, providing names and phone numbers. He felt humiliated. The nurse then instructed him not to tell anyone on campus about the meeting or about his HIV status so as to avoid inciting fear within the unit. As he listed the names of his former sexual partners, he stared at the Black Hawk model on the commandant’s desk.
Later that day, Wilkins met with the battalion tactical officer at the prep-school. “Well son, unfortunately you won’t be able to stay here,” he recalls the officer saying. “You’ll be discharged. We want to get you home to get the medical help you need.”
Home was the last place Wilkins wanted to be. Temple, Ga. was the kind of place where gay men grew up to marry women and have children. It was also a place where gossip spread quickly.
So Wilkins vowed to stay and fight back. He knew that in some cases, the military granted waivers, and thought he might be a strong candidate for one. He learned that while on treatment, his HIV would not progress and wouldn’t be transmittable to anyone else either. He had also proudly served his country for two years already in the National Guard, and was on track to attend West Point. Surely, the chain of command would see the value in letting him stay. He spent the rest of that academic year living at West Point but separated from the other students, and trying to win a waiver to return to class.
He tried his best to get in touch with an army lawyer to help him understand his next steps, but she didn’t respond to his emails. Major Jeremiah Ellis, deputy commandant of West Point Prep, became Wilkins’ strongest advocate. Ellis had survived a combat injury to his spine in 2009 when a rocket exploded behind his seat in Afghanistan; he joined West Point Prep in June 2018, and was passionate about training the next generation of soldiers. He met Wilkins because, as part of his job, he was assigned to oversee the plebe’s administrative discharge. But as he began getting to know Wilkins and his story, he was inspired by him and saw great potential. Ellis began pushing for Wilkins to receive a waiver but ran into resistance from his colleagues.
“My fear was that it was discrimination,” says Ellis. “I’m not sure he would have been treated the same way if it was cancer. People’s perception of him was that, because he was gay, HIV was a product of his choices.”
But Ellis only had so much power and ultimately, Wilkins was discharged. “To lose him as a future leader for the Army was a shame,” says Ellis. “He was absolutely the kid that I could see leading our soldiers one day.” Heartbroken, Wilkins tried to move on. He transferred to Wesleyan University in Connecticut the next year with a full tuition scholarship from the Posse Foundation, a nonprofit that looks for leaders from diverse backgrounds and communities. But the costs of housing and books were still too high for him. He was forced to drop out after just one semester.
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To avoid going home, he moved in with a close friend, Dominique Schwartz, who lived two hours east of Temple. Wilkins desperately needed a job to pay his portion of the rent, so he became a correctional facilities officer in Milledgeville, Georgia. The $13 an hour he earned was not enough to cover his expenses so to make ends meet, Wilkins started delivering food for Uber Eats when he wasn’t working at the county jail.
Depression crept in. “There were days where it was so difficult to get out of bed, to even open up the curtains,” he says.
Schwartz noticed, too. She knew Wilkins as vibrant and charismatic. Before leaving for West Point, they would spend all their weekends together. “We’d be at the pool all day, laughing and eating pizza,” says Schwartz. She also admired his caring nature. “He was the first person I told when I was pregnant. We processed it together.” She was worried about how much the discharge had derailed his life. “It ruined everything. It took away his financial security, his purpose, and his self-worth. He had always wanted this,” says Schwartz.
From an early age, Wilkins dreamed of flying a UH-60 Black Hawk, like this one shown on March 1, 2022 in Zamosc, Poland, not far from Poland’s border to Ukraine, where it was deployed as a response to Russia’s invasion of Ukraine.
Sean Gallup—Getty Images
Depression is not uncommon. A 2012 study published by the Armed Forces Medical Surveillance Monthly Report found that almost 57% of SMLWH received a diagnosis of a mental health disorder six months after their HIV diagnosis.
Licensed clinical psychologist Tiffany Lange, who worked at the U.S. Department of Veterans Affairs for seven years as a psychologist, specializing in LGBTQ+ veterans, has seen similar responses in many of her patients. “Coming into contact with a loss of career as a result of discrimination can certainly lead to a diagnosable disorder like depression, anxiety, or PTSD, and in some cases, suicide,” she says.
Lange is encouraged by the change in policy allowing current HIV+ personnel to deploy and commission, but says education will be critical to a successful rollout. “If service members don’t understand that U=U, there will still be fear that active duty SMLWH are a danger on and off the battlefield,” she says. U=U stands for undetectable=untransmittable, and is a term used by the National Institute of Allergy and Disease Control to indicate that a person with an undetectable viral load of HIV cannot transmit HIV.
Read more: HIV Used to Be a Death Sentence. Here’s What’s Changed in 35 Years
Undetectability is achieved and maintained by taking a daily pill of HIV antiretroviral therapy. This means that when a service member is diagnosed and treated, there is effectively no risk of transmitting HIV to anyone else; it was the basis of Lambda Legal’s successful argument in Harrison’s case. In Wilkins’ case, they argue that a civilian with an undetectable viral load would similarly pose no threat of transmitting HIV to others, were they admitted into the armed services.
DOD’s lack of central direction on HIV policy has resulted in a disjointed approach to U=U education across the branches. Some, like the Army’s Medical Department (MEDCOM) have articles on U=U, whereas others, like the Navy Marine Corps Public Health Center website and the Air Force Medical Service website have no mention of it at all. DOD’s own Defense Health Agency website has no mention of U=U as of publication either.
When asked why SMLWH could serve without restrictions but civilians couldn’t enlist, Dietz, the DOD spokesperson, said that there is a working group “looking into this and may release updated guidance upon conclusion of their investigation.” DOD has not disclosed who is in the working group, and what their medical and military credentials are.
Ray Mabus, Secretary of the Navy from 2009-2017, wrote a 2019 op-ed for the WashingtonPost advocating for SMLWH to serve without restrictions. Mabus was pleased with DOD’s policy update but feels differently about enlistment, citing cost. “Once you sign up, the military is saying they will take care of your medical bills for the rest of your life,” says Mabus.
Scott Schoettes, one of the attorneys on Wilkins’ case who helped win Harrison’s case earlier this year, says that’s a weak argument. “Cost is a drop in the bucket for them. And the federal government already pays for a lot of HIV-related care for people who are not serving in the military.” Indeed, according to the Department of Health and Human Services, the federal government provides free HIV care and treatment to approximately 50% of all people diagnosed with the condition in the U.S.
Other advocates argue that the military’s resistance is connected to a history of unfairness against LGBTQ+ people. “Much of the resistance is because of the stigma and shame of being LGBTQ+,” says Jennifer Dane, executive director of Modern Military Association of America, the country’s largest LGBTQ+ military advocacy organization. The White House estimates there have been over 100,000 U.S. military discharges because of sexual orientation or gender identity.
But many LGBTQ+ service members are proud of the progress the military has made. Jaime Elizabeth Hash, a trans woman and a technical sergeant in the Air Force, was recently appointed to the Air Force’s working group that analyzes barriers faced by LGBTQ+ service members. “The military has always been at the forefront of social change,” Hash says. “I am proud to be part of an organization that values everyone’s service and dedication, but we still have work to do with supporting those living with HIV.”
Schoettes believes that if they win the case, it will have major effects on the country. “If the military is welcoming to people living with HIV, workplaces everywhere will see people living with HIV as less of a danger,” he says. “For many Americans, this will reduce the shame of disclosing their status and even getting tested all together.”
As for Wilkins, his HIV is undetectable, and he has largely overcome his depression and anxiety after several years in therapy, since his discharge. He’s also enrolled in a two-year program to train as a commercial pilot. But he still wants to live his dream. He hopes that the military will change its policy.
“I don’t want to give up until I’ve tried everything I can possibly try, ” Wilkins says. “It’s still my dream to serve my country.“
