HIV-Positive Airmen Continue to Fight Discharge

Above: lawyers in Roe & Voe v. Shanahan case, representatives of Lambda Legal and Modern Military Association of America, and plaintiff Sgt. Nick Harrison of companion lawsuit Harrison v. Shanahan

Lawyers for two HIV-positive airmen Wednesday urged the U.S. Court of Appeals for the Fourth Circuit to uphold a lower court's injunction preventing the men's discharge.

Judge Leonie M. Brinkema of the U.S. District Court for the Eastern District of Virginia had issued a preliminary injunction in February against the discharge of the two airmen while their case proceeds to trial. The Department of Defense and the Air Force appealed.

The Air Force sought to discharge the two men, who have been identified only by pseudonyms, on the basis that they could not be deployed to the Middle East due to their HIV-positive status. But both men, diagnosed in 2017, are on antiretroviral treatment, have no symptoms, and have been pronounced physically fit to deploy by their doctors. Brinkema had ruled that the men were likely to succeed in their case and that the Air Force's discharge policy was based on outdated science.

"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, in a press release. Lambda Legal is representing the men along with the Modern Military Association of America (formerly OutServe-SLDN) and pro bono partner Winston & Strawn.

"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," Schoettes continued. "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 service members living with HIV the ability to continue to serve their country," added MMAA Executive Director Andy Blevins.

Lawyers from the Department of Justice, representing the Defense Department and the Air Force, filed briefs arguing 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," the Lambda Legal-MMAA press release states. "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." Medical experts have filed a friend-of-the-court brief supporting this position.

The suit, Roe & Voe v. Shanahan, is one of three Lambda Legal and the MMAA have filed to challenge the Defense Department's attempts to discharge HIV-positive service members. The others are Harrison v. Shanahan and Deese and Doe v. Shanahan. Shanahan is Patrick Shanahan, acting secretary of Defense.