Ruling barring discharge of HIV-positive airmen upheld

January 10, 2020 - 2:20 pm

RICHMOND, Va. (AP) — An injunction barring the Trump administration from discharging two Air Force members who are HIV-positive was upheld Friday by a federal appeals court panel that called the military's rationale for prohibiting deployment of service members living with HIV “outmoded and at odds with current science."

The airmen sued in 2018, arguing that major advancements in treatment mean the airmen can easily be given appropriate medical care and present no real risk of transmission to others.

A U.S. District Court judge in Maryland issued a preliminary injunction after finding that the Air Force is working under “irrational” and “outdated” policies. The ruling Friday from a three-judge panel of the 4th U.S. Circuit Court of Appeals means the injunction will remain in place while the men challenge their discharges at a trial.

The Department of Justice said the Air Force determined that the two airmen could no longer perform their duties because their career fields required them to deploy frequently and because their condition prevented them from deploying to the U.S. Central Command's area of responsibility, where most airmen are expected to go.

Central Command, which governs military operations in the Middle East, North Africa and Central Asia, prohibits personnel with HIV from deploying without a waiver.

While acknowledging that treatment decreases the risk of transmitting HIV, the DOJ argued that the risk is amplified on the battlefield where soldiers often come into contact with blood.

An attorney for the airmen argued during a hearing in September that the odds of transmitting HIV in combat are infinitesimal and should not limit their deployment or lead to their discharge.

In its written ruling, the 4th Circuit panel said a ban on deployment may have been justified at a time when HIV treatment was less effective at managing the virus and reducing the risk of transmission.

“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," Judge James Wynn Jr. wrote in the unanimous ruling.

The Department of Justice did not immediately respond to a request for comment on whether it will appeal. The DOJ could ask for a rehearing before the full 4th Circuit Court or could appeal the panel's ruling to the U.S. Supreme Court.

Scott Schoettes, counsel and HIV Project Director for Lambda Legal, one of the groups that brought the lawsuit, said the ruling means the Trump administration cannot discharge any airmen based on their HIV-positive status while the lawsuit is pending.

"If there was some other legitimate reason they could discharge someone, but not not based solely on their HIV-positive status," he said.

"I think it's really important that the 4th Circuit not only made it clear that there wasn't a justification for discharging these individuals, but there was also no good reason not to allow them to deploy."

The airmen are not named in the lawsuit and are referred to by pseudonyms, Victor Voe and Richard Roe.

U.S. District Judge Leonie Brinkema, who issued the injunction, will decide the merits of the case at trial. The case will be heard by Brinkema, not a jury.

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