Victory! Federal Court Upholds Injunction Preventing Discharge of HIV-Positive Airmen by Trump Administration, Calling it Outmoded and at Odds with Science

(Richmond, VA, January 10, 2020) – Today, the U.S. Court of Appeals for the Fourth Circuit upheld a lower court ruling in Roe & Voe v. Esper that halted efforts by the Trump administration to discharge members of the Air Force because they are living with HIV. The decision will allow two active-duty Airmen living with HIV, identified pseudonymously as Richard Roe and Victor Voe, to continue serving in the U.S. Air Force as well as preventing the discharge of any other Airmen living with HIV.

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.” The opinion, written by Judge Wynn and joined by Judge Diaz and Judge Floyd, stated:

“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. 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.”

“I am extremely relieved to learn that I can continue to serve this country like any other servicemember. 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.” said plaintiff Victor Voe.

In February, the U.S. District Court for the Eastern District of Virginia granted the plaintiffs’ request for a preliminary injunction halting implementation of the administration’s discriminatory discharge policies while the lawsuit proceeded, finding that the Airmen had a likelihood of success on their claims at trial. Today, the Fourth Circuit affirmed that ruling.

“This is the second federal court to find that the Trump administration’s attempt to discharge these individuals is unlikely to pass legal muster,” said Scott Schoettes, Counsel and HIV Project Director at Lambda Legal. “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the root of these discharge decisions and other restrictions on the service of people living with HIV are completely outdated and bigoted ideas about HIV.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 soldier or airman as well and as safely as anyone else. 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.”

Today’s ruling came in the case Roe & Voe v. Esper (formerly Roe & Voe v. Shanahan), filed in December 2018 by Lambda Legal and Modern Military Association of America (MMAA, formerly OutServe-SLDN) with pro-bono co-counsel Winston & Strawn.

In the lawsuit, Lambda Legal and MMAA represent two active-duty Airmen living with HIV, identified pseudonymously as Richard Roe and Victor Voe. Lambda Legal and MMAA have filed two other lawsuits similarly challenging the Pentagon’s discriminatory discharge policy targeting servicemembers living with HIV – Harrison v. Esper and Deese & Doe v. Esper. MMAA is also an organizational plaintiff in Roe & Voe v. Esper, on behalf of its members who are active servicemembers living with HIV.

“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,” said plaintiff Richard Roe. “I am very pleased the 4th Circuit decision will allow us to continue serving the country we love.”

"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," said Modern Military Association of America (MMAA) Legal and Policy Director Peter Perkowski. "In light of major advancements in medical treatments, there is no legitimate reason these servicemembers 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."

The preliminary injunction was granted in February against the U.S. Department of Defense and the Secretary of the Air Force to halt discharge proceedings against active duty HIV-positive Airmen. In granting the preliminary injunction, the district court not only ruled the plaintiffs were likely to succeed on their claims that they should be retained, but also that the plaintiffs were likely to succeed on their claims that they should be permitted to deploy as well.

The decision on the preliminary injunction comes approximately four months after a three-judge panel of the Fourth Circuit Court of Appeals heard oral arguments from both sides on September 18, in which Geoffrey Eaton, Partner at Winston & Strawn LLP, argued on behalf of the plaintiffs. In the argument judges questioned the Department of Justice lawyers representing the Trump Administrations for more clear answers as to why the Department of Defense believes its policies are justified.

The opinion concludes:

“The Government’s explanations for why it has imposed an effective ban on deploying HIV-positive servicemembers to CENTCOM’s area of responsibility are at odds with modern science. These servicemembers, like other HIV-positive individuals with undetectable viral loads, have no symptoms of HIV. They take daily medication—usually one pill, for some people two—and need a regular, but routine blood test. They cannot transmit the virus through normal daily activities, and their risk of transmitting the virus through battlefield exposure, if the virus can be transmitted at all, is extremely low. Although transmission through blood transfusion is possible, these servicemembers have been ordered not to donate blood. But the Government did not consider these realities when discharging these servicemembers, instead relying on assumptions and categorical determinations. As a result, the Air Force denied these servicemembers an individualized determination of their fitness for military service.”

In addition to contesting the unlawful discharges, the lawsuit challenges the Pentagon’s discriminatory deployment policies, which prevent service members living with HIV from deploying to most locations outside the United States. For years, these unjustifiable policies have restricted the opportunities of service members living with HIV. Now the Trump administration and the Air Force are using these same deployment restrictions to justify discharging service members solely based on HIV status.

Joining Lambda Legal and MMAA on the legal team are attorneys from Winston & Strawn LLP and Greenberg Traurig LLP, serving as pro-bono co-counsel. Harrison v. Esper, a companion case challenging the Army’s refusal to commission an enlisted soldier as a JAG officer based on his HIV status, is set to proceed to trial alongside Roe and Voe v. Esper in the Eastern District of Virginia, likely in the spring. The same attorneys are working on both cases.

Read more about the case here: https://www.lambdalegal.org/in-court/cases/roe-and-voe-v-shanahan

Read the opinion here: https://www.lambdalegal.org/in-court/legal-docs/roe_va_20200110_opinion

Read Richard Roe’s op-ed about his experience: https://www.advocate.com/commentary/2019/9/18/pentagon-tried-discharge-me-being-hiv-today-i-fight-back

Read Secretary of the Navy Ray Mabus’ op-ed: https://www.washingtonpost.com/opinions/2019/08/05/discriminating-against-hiv-positive-military-members-is-unproductive-our-military/?fbclid=IwAR38aa1YS2yCbcg_Eyk46SD2rKmuRLfc0T5C7ZkT5auwcXlezThxul0d930

You can find this release here: https://www.lambdalegal.org/news/va_20200110_victory-court-upholds-injunction-preventing-discharge-hiv-positive-airmen of servicemembers living with HIV.”