Photo: Markus Bürkle, via Unsplash.
A federal appeals court has upheld a lower court decision blocking the Trump administration from discharging members of the Air Force because they are living with HIV.
The lawsuit was brought by two Airmen, referred to pseudonymously as Richard Roe and Victor Voe, who were given discharge orders on the grounds that their HIV status made them “unfit for military service.”
This was in direct contradiction to support that both Roe and Voe had received from their doctors and commanding officers saying they met the medical, mental health, and physical requirements to continue serving in the U.S. military.
Under the Trump administration, the Department of Defense has implemented a “Deploy or Get Out” policy, under which service members must be able to be deployed at any moment for up to 12 consecutive months.
But in doing so, the Pentagon has embraced the view — based on flawed science and outdated understandings of how HIV is spread — that an individual living with HIV, even one taking medication to keep their viral load undetectable, is incapable of deploying abroad.
In February, the U.S. District Court for the Eastern District of Virginia granted the plaintiffs’ request for a preliminary injunction preventing the Pentagon from moving forward with discharge proceedings against Roe, Voe, and other HIV-positive service members. The Trump administration appealed the decision to the 4th U.S. Circuit Court of Appeals.
On Friday, a three-judge panel of the 4th Circuit unanimously ruled in favor of keeping the injunction in place while the lawsuit, which calls for overhauling the Defense Department’s policy and allowing HIV-positive individuals to deploy abroad, is argued on its merits.
Writing on behalf of the court, Judge James A. Wynn found that the Trump administration’s justifications for moving forward with the discharges “fail to account for current medical literature and expert opinion about current HIV treatment and transmission risks.”
“A ban on deployment may have been justified at a time when HIV treatment was less effective at managing the virus and reducing transmission risks. But any understanding of HIV that could justify this ban is outmoded and at odds with current science,” Wynn wrote. “Such obsolete understandings cannot justify a ban, even under a deferential standard of review and even according appropriate deference to the military’s professional judgments.”
Wynn noted that both Roe and Voe are on daily medication and have undetectable viral levels, making it nearly impossible for them to transmit the virus to their fellow service members, accusing the Trump administration of “relying on assumptions and categorical determinations.”
“The Government’s explanations for why it has imposed an effective ban on deploying HIV-positive service members to CENTCOM’s area of responsibility are at odds with modern science,” he concluded. “As a result, the Air Force denied these service members an individualized determination of their fitness for military service.”
Attorneys for Roe and Voe were elated by the court’s opinion.
“This is the second federal court to find that the Trump administration’s attempt to discharge these individuals is unlikely to pass legal muster,” Scott Schoettes, counsel and HIV Project Director for Lambda Legal, which is representing Roe and Voe, along with the Modern Military Association of America and attorneys two law firms serving as pro-bono co-counsel.
“At the root of these discharge decisions and other restrictions on the service of people living with HIV are completely outdated and bigoted ideas about HIV,” Schoettes continued. “Today’s ruling clears the way for us to definitively prove at trial that a person living with HIV can perform the job of soldier or airman as well and as safely as anyone else.”
The legal team for Roe and Voe v. Esper, pictured with Sgt. Nick Harrison (center), the plaintiff in companion lawsuit Harrison v. Esper – Photo: Lambda Legal.
As a result of the 4th Circuit’s ruling, HIV-positive service members, including Roe and Voe, will be able to continue serving without incident.
“I am extremely relieved to learn that I can continue to serve this country like any other service member,” Voe said in a statement. “Serving in the U.S. military has been the greatest honor of my life and I’m thrilled to see this court affirm the lower court ruling in our favor. No one should be discharged or discriminated against because of HIV when it does not interfere whatsoever with our capacity to serve.”
“I joined this lawsuit because I feared I would be discharged from the military, but also because of the lingering stigma and many misconceptions about what it is to live with HIV today,” Roe aded. “I am very pleased the 4th Circuit decision will allow us to continue serving the country we love.”
Lambda Legal and the Modern Military Association of America have also filed two other lawsuits challenging the Department of Defense’s policy on HIV-positive servicemembers: Harrison v. Esper, in which Sgt. Nick Harrison, a member of the D.C. National Guard, is challenging the Army’s refusal to allow him to commission as a JAG officer; and Deese & Doe v. Esper.
The Harrison case is set to go to trial in the Eastern District of Virginia, alongside the Roe & Voe case, sometime in the spring.
“We’re thrilled with the court’s decision upholding the injunction that prevents the Trump-Pence administration from wrongfully discharging these Airmen living with HIV,” Peter Perkowski, the legal and policy director of MMAA, said in a statement. “In light of major advancements in medical treatments, there is no legitimate reason these service members cannot or should not be able to continue to serve their country. It’s past time for the Department of Defense’s outdated policies to catch up with modern science.”
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