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On Wednesday, lawyers for two active-duty Airmen living with HIV urged a three-judge panel of the 4th U.S. Circuit Court of Appeals to uphold a preliminary injunction issued in February to prevent the Trump administration from discharging HIV-positive service members.
Plaintiffs Victor Voe and Richard Roe (both pseudonyms) are two active-duty airman who sued the Defense Department and the Air Force after they were given discharge orders and deemed “unfit for military service.”
Those orders came despite both men having met all medical and physical requirements to serve, and receiving support from their doctors and commanding officers.
“Serving my country has been the greatest honor of my life; one that I am extremely grateful for and proud of,” Voe said in a statement. “All my fellow service members in the lawsuit and I want is to be able to continue to serve, and to do so without unnecessary restrictions preventing us from giving this country what it deserves — our best.”
Under the Trump administration, the Department of Defense has adopted a “Deploy or Get Out” policy, in which service members must be able to be deployed at any moment for up to 12 consecutive months.
While this policy has primarily been used to argue against transgender individuals serving, it is also being applied to service members living with HIV.
Even though HIV is treatable with daily medication and does not require any special accommodations, the administration’s policy — coupled with a general ignorance about the science around HIV and how it is spread — has led the Department of Defense to classify HIV-positive people as “undeployable,” putting them at risk of been forcibly discharged.
In February, the U.S. District Court for the Eastern District of Virginia granted an injunction to halt any further discharges of HIV-positive Airmen. The court, in its ruling, found that Roe and Voe were likely to succeed on their claims that the military’s HIV policy is both outdated and irrational.
The government subsequently appealed the decision to the 4th Circuit, arguing that the injunction should be lifted. The Department of Justice, in defending the government, has argued that under current regulations, Airmen with HIV are prohibited from deploying, unless they receive a waiver.
Thus, even though there is also a regulation that prohibits discharging a service member based on their HIV status, the government is effectively doing that by not allowing HIV-positive individuals to deploy, thus putting them at risk of being discharged.
Meanwhile, lawyers for Roe and Voe argue that there is no rational basis for prohibiting HIV-positive members from deploying, they can easily receive needed medicine to treat their condition, and they pose no risk to other service members, even in combat situations.
“The trial court appropriately ruled that these Airmen should be able to continue to serve while this case is being tried, and it put the discriminatory policy on hold,” Scott Schoettes, HIV Project Director and counsel at Lambda Legal, which is representing the two plaintiffs, said in a statement. “The Government could have allowed the case to go to trial last week — instead they pursued this appeal in an effort to discharge these patriotic young men before they get their day in court. It’s disappointing, but not surprising, given the strength of the evidence we will present at trial.”
“Thanks to modern science, there is no legitimate reason to deny service members living with HIV the ability to continue to serve their country,” said Andy Blevins, the executive director of the Modern Military Association of America, which is also representing Roe and Voe. “Major advances in the treatment of HIV have rendered the virus untransmittable. At a time when the military is struggling to meet recruiting goals, the last thing the Department of Defense should be doing is reinforcing harmful stereotypes and discharging highly trained service members based on outdated science. We’re proud to be suing the Trump-Pence administration to ensure all service members, including those living with HIV, are treated equally with the dignity and respect they deserve.”
Earlier this summer, several military experts, medical associations, and HIV advocates filed amicus briefs urging the 4th Circuit to keep the injunction in place, reiterating many of the same arguments put forth by Roe and Voe’s legal team.
The lawsuit, known as Roe and Voe v. Shanahan, is the third such lawsuit challenging the Department of Defense’s HIV policy. Lambda Legal and the Modern Military Association of America have previously filed suit against the department for denying Sgt. Nick Harrison of the D.C. National Guard the chance to commission as a JAG officer, and has lodged a companion lawsuit on behalf of Naval officer Kevin Deese and an anonymous Air Force Academy graduate who were both denied the opportunity to commission as officers.
Roe and Voe are hopeful that the court will keep the injunction in place — thus keeping them from being discharged — while they challenge the merits of the HIV policy in court, with the eventual hope of overturning the policy.
“I joined the Air Force to follow in my parents’ legacy of serving this country. I am honored and privileged for the opportunity to serve, but I joined this lawsuit because of a lack of understanding and stigma around what it means to live with HIV today,” Roe said in a statement. “The only qualification to serve should be whether one can perform the job, and service members with HIV can perform their job as well and as safely as anyone else. We look forward to a final decision that allows us to serve the country we love, free of discrimination.”
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