Court Blocks Trump Admin’s Discharge of HIV-Positive Airmen

The plaintiffs were deemed “unfit for continued military service.”

A federal judge ordered the United States Department of Defense and Acting Secretary of Defense Patrick Shanahan to halt the discharge of two members of the U.S. Air Force simply because they are HIV positive, Lambda Legal reports.

The order came in the case of Roe and Voe v. Shanahan, et al., filed by Lambda Legal, which is representing the two men with OutServe-SLDN and the partner law firm of Winston and Strawn, in the U.S. District Court for the Eastern District of Virginia.

The two Airmen, who filed pseudonymously, were given discharge orders last year after being found “unfit for continued military service,” despite compliance with medical and physical fitness requirements. The plaintiffs also have the full support of their medical providers and commanding officers.

Issuing the preliminary injunction and rejecting the Defense Department’s motion to dismiss while the case proceeds to trial, U.S. District Court Judge Leonie Brinkema ruled that the plaintiffs, who were expected to be discharged within 10 days, were likely to succeed in preventing their discharge through the lawsuit. A written order is expected to be issued by early next week.

“This is a major victory in our fight to ensure everyone living with HIV can serve their country without discrimination,” said Scott Schoettes, Lambda Legal’s counsel and HIV project director, 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.”

“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,” added Peter Perkowski, OutServe-SLDN’s legal and policy director. “But also indicated that, at least on the evidence before her, the military’s decisions were based on outdated medical science and are categorically denying people living with HIV the same opportunities as their fellow service members. We look forward to a final decision in the case.”

The lawsuit challenges the Pentagon’s discriminatory policies preventing HIV-positive military service members from deploying outside the U.S. without a waiver. The same deployment restrictions are now being used to justify the discharge of service members solely based on HIV status.

The White House unveiled a new “deploy or get out” policy in February 2018, instructing the Pentagon to identify members who can’t be deployed to military posts outside the U.S. for more than 12 consecutive months and separate them from service.

While other military branches have stated they will not discharge HIV-positive service members based on this deployment policy, the Air Force’s implementation is less clear.

Following Harrison v. Shanahan and Deese and Doe v. Shanahan, Roe and Voe v. Shanahan is the third lawsuit Lambda Legal and OutServe-SLDN has filed to challenge military policies discriminating against people living with HIV.

The Centers for Disease Control noted for the first time in 2017 that with proper treatment, a person living with HIV could suppress their viral load to undetectable levels, meaning there is effectively no risk of transmitting it to others. 

“The Pentagon needs to catch up with the 21st Century,” said Schoettes in a previous statement. “Recruitment, retention, deployment and commissioning should be based on a candidate’s qualifications to serve, not unfounded fears about HIV.”

“The U.S. Department of Defense is one of the largest employers in the world, and like other employers, is not allowed to discriminate against people living with HIV for no good reason.”

New heads of the Presidential Advisory Council on HIV/AIDS were sworn in last month after Trump fired the remaining members of the original group in late 2017. Half of them had previously quit out of frustration.

The Trump administration has diverted funds from the Ryan White HIV/AIDS program, which supports those living with the disease, to cover the increased costs of detaining immigrant children. The administration has also requested cuts from the President’s Emergency Plan for AIDS Relief (PEPFAR), an initiative to fight the epidemic worldwide, and halted research by banning U.S. National Institutes of Health (NIH) scientists from acquiring new human fetal tissue for experiments.

The CDC estimates more than 1.1 million people aged 13 and older are living with HIV in the U.S., including an estimated 162,500 who do not yet know they are infected.

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