Armed Forces Accused of Discriminating People with HIV

A group from FGV Direito and another group that militates in favor of people living with HIV-Aids asked this Tuesday (30) to the TRF (Federal Regional Court) of the 2nd region of Rio de Janeiro, for their permission as amicus curiae (friend of the court) in action brought against the Armed Forces for discrimination against people living with HIV.

Although Brazilian legislation condemns any form of prejudice and discrimination against people with HIV, the Armed Forces demand an exam that detects the virus and, in the face of a positive result, prevents the person from entering a military career.

It turns out that there is ample scientific evidence showing that people with HIV may not develop the disease if they are under treatment. Many have even had undetectable viral loads for years, which means they don’t transmit the virus either.

The process that motivated the actions of the two entities has been in progress since 2018 and is filed by a business administrator in Rio de Janeiro who was barred from a competition for admission to the Air Force because he was a person living with HIV. “Unable for its intended purpose”, says the medical report of the Air Force.

HIV positive for 11 years, he has always worked in administrative activities, has proof of full physical and mental health and is being treated with antiretroviral drugs, in addition to clinical follow-up.

Through an injunction, Silva even joined the Air Force, but six months later, in the first internal competition, he had his promotion to second lieutenant canceled and was excluded from the Armed Forces. He appealed the decision at the TRF, and the appeal has yet to be judged.

“It was almost an ambush. [resultado positivo para o HIV]”, says lawyer Eloísa Machado, professor at the Human Rights Strategic Litigation Clinic at FGV Direito de São Paulo, who filed for amicus curiae together with the GIV (Group of Incentive to Life).

The friend of the court is a figure in Brazilian law that guarantees the participation of public bodies and civil society entities in legal proceedings. The performance is based on manifestations on controversial issues or that require technical knowledge for analysis. FGV students studied the action for six months, according to Machado.

For the lawyer, the competition notices and the internal military rules impute to people living with HIV a permanent disability, preventing not only the entry into the Armed Forces, but also eventual promotions of people who contracted the virus after being admitted.

“our attempt [como amicus curiae] it is perhaps reversing this last space of formal discrimination against people living with HIV”, says Machado.

According to her, a review of the statute in the Armed Forces is necessary, as only a positive diagnosis of the HIV virus does not mean incapacity to exercise any functions.

USP mathematics professor Jorge Beloqui, from the GIV, reinforces that, without this updating of the norms, more cases of discrimination, without any scientific basis, will continue to occur.

For him, the consequences of discrimination at work on a person living with HIV go beyond an isolated case and end up reaching all HIV-positive people.

Although criticized, this attitude by the Air Force is not prohibited. In previous positions on the matter, the Ministry of Defense’s technical advisors informed that, by law, the Armed Forces have “autonomy to decide not to accept candidates who present any type of weakness that prevents them from exercising their positions”.

Private companies and other public institutions, on the other hand, are prohibited from asking applicants for job vacancies to be tested for HIV. Law nº 11.199/2002 considers discrimination against HIV carriers and people with Aids to be the requirement for tests to detect the virus in competition entries or selection to enter the public and private service.

Sought, the press office of the Ministry of Defense did not comment until the publication of this text.