Lambda Legal and MMAA Urge 4th Circuit to Uphold Court Order Preventing Discharge of HIV-Positive Airmen

(Richmond, VA, September 18, 2019) – Today, lawyers for two active-duty Airmen who are living with HIV urged a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit to uphold a preliminary injunction granted in February that prevents the Trump Administration from continuing with discharge proceedings against members of the U.S. Air Force living with HIV. Today’s argument came in Roe & Voe v. Shanahan, the lawsuit filed last December on behalf of two Airmen, identified pseudonymously, by Lambda Legal, the Modern Military Association of America (MMAA, formerly OutServe-SLDN) and pro bono partner Winston & Strawn LLP.

"Serving my country has been the greatest honor of my life; One that I am extremely grateful for and proud of.” said plaintiff Victor Voe. “All my fellow service members in this lawsuit and I want is to be able to continue to serve, and to do so without unnecessary restrictions preventing us from giving this country what it deserves—our best."

In February 2019, the U.S. District Court for the Eastern District of Virginia granted the preliminary injunction 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 ruled the plaintiffs were likely to succeed on their claims that the military policies preventing the deployment of service members with HIV are outdated and irrational.

“The trial court appropriately ruled that these Airmen should be able to continue to serve while this case is being tried, and it put the discriminatory policy on hold,” said Scott Schoettes, HIV Project Director and Counsel at Lambda Legal. “The Government could have allowed the case to go to trial last week—instead they pursued this appeal in an effort to discharge these patriotic young men before they get their day in court. It’s disappointing, but not surprising, given the strength of the evidence we will present at trial.”

"Thanks to modern science, there is no legitimate reason to deny servicemembers living with HIV the ability to continue to serve their country," said MMAA Executive Director Andy Blevins. "Major advances in the treatment of HIV have rendered the virus untransmittable. At a time when the military is struggling to meet recruiting goals, the last thing the Department of Defense should be doing is reinforcing harmful stereotypes and discharging highly trained servicemembers based on outdated science. We're proud to be suing the Trump-Pence administration to ensure all servicemembers, including those living with HIV, are treated equally with the dignity and respect they deserve."

In the briefs on appeal, lawyers from the Department of Justice (DOJ) argue that the Air Force can discharge these Airmen—despite a regulation prohibiting discharge based on HIV status alone—because Airmen with HIV are not allowed to deploy. In opposition, the lawsuit argues that preventing the Airmen from deploying because they have HIV and then discharging them because they can’t deploy is the same as discharging them because they have HIV. Furthermore, plaintiffs argue there is no rational basis for prohibiting the deployment of service members with HIV, because they can easily be provided with appropriate medical care and present no real risk of transmission to others, even in combat situations.

“I joined the Air Force to follow in my parents’ legacy of serving this country. I am honored and privileged for the opportunity to serve, but I joined this lawsuit because of a lack of understanding and stigma around what it means to live with HIV today,” said plaintiff Richard Roe. “The only qualification to serve should be whether one can perform the job, and service members with HIV can perform their job as well and as safely as anyone else. We look forward to a final decision that allows us to serve the country we love, free of discrimination.”

In July, several military experts, medical associations and HIV advocates filed three amicus briefs with the Fourth Circuit opposing Trump administration’s deployment and discharge policies with respect to service members living with HIV. The medical brief argues the policies are irrational and discriminatory given the strides in HIV diagnosis and treatment that suppress viral load to undetectable levels – thus eliminating the risk of transmission and allowing people to return to health and lead full lives. The brief from HIV advocates and public health experts discussed the effects of HIV stigma and discrimination in combatting the HIV/AIDS epidemic. And the friend-of-the-court brief from former military leaders—including former Secretary of the Navy Ray Mabus, former Secretary of the Army Eric Fanning and former Secretary of the Air Force Deborah Lee James—explains that there is no military justification for preventing service members with HIV from deploying into combat positions.

Background

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. 

The Modern Military Association of America (formerly 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 MMAA have brought to challenge military policies that discriminate against people living with HIV.

The case is entitled Roe and Voe v. Shanahan, et al.  Joining Lambda Legal and MMAA on the legal team are attorneys from Winston & Strawn LLP and Greenberg Traurig LLP, serving as pro bono counsel.