Secretary of the Air Force Heather Wilson – Photo: Scott M. Ash/U.S. Air Force.
The Trump administration is being sued after it gave discharge orders to two HIV-positive members of the United States Air Force just days before the Thanksgiving holiday.
Lambda Legal and OutServe-SLDN, along with law firm Winston & Strawn, filed the lawsuit in the U.S. District Court of the Eastern District of Virginia on behalf of the two service members, whose identities remain anonymous in order to protect their medical privacy.
The two had appealed attempts to forcibly discharge them from the Air Force, demonstrating compliance with fitness assessments, adherence to medical treatment to keep their viral loads undetectable, and even obtaining commendations from commanding officers.
But despite all that, their appeals were rejected and they were informed they would be discharged against their will.
“It’s disgusting that the Trump administration is sending some men and women in uniform home for the holidays without jobs simply because of their HIV status,” Scott Schoettes, legal counsel and HIV Project Director for Lambda Legal, said in a statement. “These decisions should be based on science, not stigma. Lambda Legal is suing to stop these separations and will keep fighting until President Trump understands that there’s not a job in the world a person living with HIV cannot safely perform, including the job of soldier.”
Under the Trump administration’s “Deploy or Get Out” policy, unveiled by Mattis in February, the Pentagon has been asked to identify service members who it deems as being unable to be deployed to military posts outside of the United States for more than 12 consecutive months, and begin the process of forcibly discharging them. As a result, HIV-positive service members find themselves at risk of being discharged.
The Air Force members’ lawsuit, which names the Department of Defense, Secretary of Defense Jim Mattis, and Air Force Secretary Heather Wilson as defendants, seeks to challenge the Pentagon’s classification of service members with HIV as “undeployable.”
The plaintiffs argue in their lawsuit that the designation is based on outdated science and misconceptions about the risk posed by HIV-positive individuals, particularly if they are taking antiretrovirals to reduce their viral load, which significantly reduces the chance of transmission to others.
“Defendants’ policies limiting the deployability of Airmen and other Service members living with HIV discriminate impermissibly against people living with HIV, both on their face and as applied, and preclude otherwise-qualified individuals from further service based solely on their HIV status,” the complaint reads. “Defendants routinely permit similarly situated individuals who do not have HIV, including but not limited to people with comparable chronic, manageable conditions, to deploy worldwide and to continue to serve.”
The lawsuit also alleges the policy violates the Airmen’s right to due process under the Fifth Amendment to the U.S. Constitution and the Administrative Procedure Act, which governs the way in which federal agencies may propose and establish certain regulations.
The plaintiffs’ lawyers argue that the regulations put forth by the Department of Defense and the Air Force are “arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with law.”
Lambda Legal and OutServe-SLDN have previously filed two other lawsuits challenging the military’s policy toward HIV-positive individuals, including one brought by Sgt. Nick Harrison, a member of the D.C. Army National Guard who was denied a position in the Judge Advocate General Corps due to his serostatus.
The groups also filed a lawsuit to protect two other HIV-positive service members threatened with discharge.
“Anyone willing to put their life on the line to defend our country deserves respect, not discrimination,” Peter Perkowski, the legal and policy director at OutServe-SLDN, said in a statement. “These Airmen are acknowledged leaders and good at their jobs. they have served honorably for many years. They have the support of their commanders and medical personnel, who state that having HIV will not affect their ability to do their jobs. There is simply no justification for this decision.”