Court Orders Trump Administration to Halt the Discharge of HIV-Positive Airmen

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February 15, 2019

Today, a federal judge ordered the U.S. Department of Defense and Acting Secretary of Defense Patrick Shanahan to halt discharge proceedings against HIV-positive members of the U.S. Air Force. The order came in the case of Roe and Voe v. Shanahan, filed by Lambda Legal and OutServe-SLDN, with partner law firm Winston & Strawn, in the U.S. District Court for the Eastern District of Virginia.

The two Airmen serving as plaintiffs, who filed pseudonymously, were given discharge orders at the end of last year after being found “unfit for continued military service” despite compliance with medical treatment and physical fitness requirements. 

Despite support from their medical providers and commanding officers, the first of these Airmen was to be separated from service in just ten days. In granting the preliminary injunction, the judge ruled the plaintiffs were likely to succeed in preventing their discharge through the lawsuit and rejected the Trump Administration’s motion to dismiss.

“This is a major victory in our fight to ensure everyone living with HIV can serve their country without discrimination,” said Scott Schoettes, Counsel and HIV Project Director at Lambda Legal.

“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.”

U.S. District Court Judge Leonie Brinkema issued the ruling from the bench after hearing oral argument today on both Lambda Legal and OutServe-SLDN’s motion for preliminary injunction and the administration’s motion to dismiss.  A written order is likely to issue by early next week.

The lawsuit challenges the Pentagon’s discriminatory deployment policies, which prevent service members living with HIV from deploying outside the United States without a waiver. For years, these unjustifiable policies have restricted the opportunities of service members living with HIV. Now the Trump administration and the Pentagon are using these same deployment restrictions to justify discharging service members solely based on HIV status.  

Though purportedly not the basis for the discharge of the plaintiffs, the “Deploy or Get Out” policy unveiled by the Trump administration in February 2018 directs the Pentagon to identify service members who cannot be deployed to military posts outside of the United States for more than 12 consecutive months and to separate them from military service. Other branches have made clear they will not be discharging HIV-positive service members based on this new policy, but it is not entirely clear how the Air Force is implementing it.

OutServe-SLDN is also an organizational plaintiff in this case to advance the interests of its members who are living with HIV and serving in the military.  Along with Harrison v. Shanahan and Deese and Doe v. Shanahan, this is the third lawsuit that Lambda Legal and OutServe-SLDN have brought to challenge military policies that discriminate against people living with HIV.

“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,” said Peter Perkowski, OutServe-SLDN’s Legal & 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 case is entitled Roe and Voe v. Shanahan, et al Joining Lambda Legal and OutServe-SLDN on the legal team are attorneys from Winston & Strawn LLP, serving as pro bono counsel.