Photo: Markus Bürkle, via Unsplash.
A federal judge has ordered the U.S. Department of Defense and Acting Secretary of Defense Patrick Shanahan to halt discharge proceedings against HIV-positive Air Force members who sued in order to keep their jobs.
The lead plaintiffs, known as “Richard Roe” and “Victor Voe” to protect their identities, are two Airmen who were given discharge orders and deemed “unfit for military service just before Thanksgiving despite having met all of the medical and physical requirements to serve, and receiving support from both their medical providers and commanding officers.
Leonie Brinkema, a U.S. District Court Judge for the Eastern District of Virginia, rejected the government’s request to dismiss the men’s lawsuit, and issued a preliminary injunction to block the discharges of the two Airmen and other HIV-positive service members.
In her opinion, Brinkema found that the classification of Roe and Voe as “nondeployable” due to their serostatus was based on outdated medical science, and that the two were more than likely to succeed in proving that they were discriminated against.
“The military is an institution like no other in our system of government. It has unique institutional interests and experience. The decisions it makes are thus entitled to deference from the coordinate branches, and particularly from the judicial branch, whose officers are largely shielded from the exigencies of military life,” Brinkema wrote. “Nonetheless, the military remains a branch of government and so is bound to follow the Constitution and laws of the United States. And the judiciary’s responsibility remains to enforce those laws and protect the rights of individuals vulnerable to arbitrary exercises of governmental authority.
“Courts must examine questions of military policy with care and humility — but examine them they must,” she continued. “Here, plaintiffs have made a strong preliminary showing that the Air Force’s approach to service members living with HIV is irrational, inconsistent, and at variance with modem science.”
Lawyers for the two Airmen celebrated the injunction, which will prevent their clients from being discharged as the case works its way through the courts.
“This is a major victory in our fight to ensure everyone living with HIV can serve their country without discrimination,” Scott Schoettes, counsel and HIV Project Director at Lambda Legal, said in a statement. “These decisions should be based on science, not stigma, as today’s ruling from the bench demonstrates. Despite President Trump’s promise to improve the lives of people living with HIV at the State of the Union this month, his administration continues to defend these policies and others discriminating against people most impacted by HIV. Lambda Legal will keep fighting until these brave and qualified Airmen can serve without limitation.”
OutServe-SLDN, which has signed on as an organizational plaintiff to represent the interests of some of its HIV-positive active-duty service members, also praised Brinkema’s decision.
“We are thrilled that Judge Brinkema recognized not just that the military’s policies were harming our members who are living and serving with HIV, but also indicated that, at least on the evidence before her, the military’s decisions were based on outdated medical science and are categorically denying people living with HIV the same opportunities as their fellow service members.”
The lawsuit, which will now move forward on its merits, strikes at the heart of the Pentagon’s February 2018 “Deploy of Get Out” policy, which was originally drafted to justify the separation of transgender troops. Under that policy, the Pentagon is to identify service members who cannot be deployed to military posts outside of the United States for more than 12 consecutive months.
But in addition to flagging transgender service members, military leaders within the Air Force have begun flagging HIV-positive members for discharge, even though someone who is adhering regularly to antiretrovirals is unlikely to pass on the virus and would be able to deploy anywhere at a moment’s notice, if needed.
Other branches of the military have made clear they will not be discharging HIV-positive service members under the “Deploy or Get Out” policy. Nonetheless, Lambda Legal and OutServe-SLDN have filed two other lawsuits challenging the military’s classification of HIV-positive individuals as “nondeployable.” One of those cases involves a challenge brought by by Sgt. Nick Harrison, a member of the D.C. Army National Guard who was denied a position in the Judge Advocate General Corps because he was HIV-positive.
“This is a big win,” tweeted GLAAD following Brinkema’s decision. “No service member should face discharge from the Trump Administration simply because they are living with HIV.”