Federal court upholds ruling that prevented discharge of 2 HIV-positive airman
LGBTQ advocacy groups are celebrating a ruling by a federal appeals court upholding an injunction that prevented the Trump administration from firing two members of the Air Force because they were HIV-positive
LGBTQ advocacy groups are celebrating a ruling by a federal appeals court upholding an injunction that prevented the Trump administration from firing two members of the Air Force because they were HIV-positive.
A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit unanimously ruled Friday that the current administration's position of discharging members who live with HIV is based on antiquated views on the risks of HIV transmission, and it doesn't account for recent scientific advancements.
“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,” U.S. Circuit Judge James A. Wynn Jr. wrote in the 46-page opinion.
“But any understanding of HIV that could justify this ban is outmoded and at odds with current science. 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,” he added.
In late 2018, the two airmen — identified in legal documents as Richard Roe and Victor Voe — received discharge orders just days before Thanksgiving after they were found “unfit for continued military service.”
The LGBTQ legal advocacy group Lambda Legal and the Modern Military Association of America, the nation's largest nonprofit for the LGBTQ military, filed a lawsuit on behalf of the two servicemen, challenging the Pentagon's policies.
The Department of Defense restricts newly diagnosed members from deploying outside the U.S. without a waiver.
According to the “Deploy or Get Out” policy unveiled by the Trump administration in February 2018, servicemembers who can't be deployed overseas for over 12 months should separate from the military. Since men and women in uniform living with HIV are considered non-deployable, HIV-positive people are always in danger of being discharged.
“These decisions should be based on science, not stigma,” Scott Schoettes, Lambda Legal's counsel and HIV project director, said in a statement at the time.
In February, the U.S. District Court for the Eastern District of Virginia granted the plaintiffs' request for a preliminary injunction and stopped the administration from implementing the policy.
In September, the judges asked why the military refused to deploy HIV-positive servicemembers if people with other chronic diseases, such as diabetes and high blood pressure were not, The Washington Post reported.
In Friday's decision reaffirming the injunction, the court ruled that the government's justifications “fail to account for current medical literature and expert opinion about current HIV treatment and transmission risks.”
“This is the second federal court to find that the Trump administration's attempt to discharge these individuals is unlikely to pass legal muster,” Schoettes said in a statement shared with the Daily News.
“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. Today's ruling clears the way for us to definitively prove at trial that a person living with HIV can perform the job of a soldier or airman as well and as safely as anyone else,” he added. “We are confident Roe and Voe will succeed because the Government is unable to offer a reasonable justification for their discriminatory treatment of servicemembers living with HIV.”
Plaintiff Victor Voe said he was “extremely relieved” with the decision.
“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,” Voe said in a statement. “No one should be discharged or discriminated against because of HIV when it does not interfere whatsoever with our capacity to serve.”
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