Former Navy Midshipman Kevin Deese

Lambda Legal and co-counsel Winston & Strawn LLP, Perkowski Legal, PC, and Scott Schoettes announced this week that they have reached a settlement with the Department of Defense in a lawsuit filed in 2018 on behalf of former Navy midshipman Kevin Deese, and former Air Force cadet John Doe (a pseudonym), who were denied commissions after graduating from their respective service academies because they are living with HIV.

The settlement provides for Deese and Doe to be commissioned as officers in recognition of the status and military careers they qualified for and earned years ago, a Lambda Legal press release said.

Kara Ingelhart, senior attorney at Lambda Legal, said, “We are gratified that our clients, who were denied officer commissions they had earned because of the U.S. military’s discriminatory policy of withholding career advancement opportunities from HIV-positive service members, will now be able to achieve their goals.

“Service members living with HIV, once affected by an outdated, discriminatory policy, no longer face discharge, bans on commissioning, or bans on deployment simply because they are living with HIV,” Inglehart added.

Deese said that for him, joining “my brave co-plaintiff” in filing the lawsuit was “about demonstrating the very leadership that inspired me to a military career. I follow the mantra of 2004 Naval Academy graduate Travis Manion — ‘If not me, then who?’ Now, 10 years after my Naval Academy graduation, future midshipmen and cadets living with HIV will be able to commission with their classmates upon graduation. And I could not be more proud to finally be commissioning.”

Bryce Cooper at Winston & Strawn said his firm was “grateful for the opportunity to work with Lambda Legal and others” in getting the discriminatory policy overturned, adding, “Our pro bono efforts, in both the district court and the Fourth Circuit, have brought about a meaningful, and long overdue, change for service members living with HIV.”

The settlement follows changes made in June 2022 to DoD policy that discriminated against service members living with HIV. The changes confirmed service members living with HIV who are asymptomatic with undetectable viral load “will have no restrictions applied to their deployment or to their ability to commission . . . solely on the basis of their HIV-positive status.”

That effectively what happened to Deese and Doe from impacting future military academy cadets who sero-convert while in their course of their college education. The changes followed a federal court ruling in April 2022 that ordered the DoD to stop enforcing those discriminatory policies. The ruling came in two cases — Harrison v. Austin and Roe v. Austin, combined for purposes of discovery and summary judgment — for which Lambda Legal served as co-counsel with Winston & Strawn LLP, Greenberg Traurig LLP, Scott Schoettes, and Peter Perkowski.

Counsel and clients are currently waiting for a U.S. district court to rule on the military’s last remaining bar preventing people living with HIV from joining any branch of the U.S. Armed Services in the lawsuit in the case Wilkins v. Austin.

— Tammye Nash