HIV-Positive Service Members Targeted by Trump Win Partial Victory

A federal judge has refused the Trump administration's request to remove the Modern Military Association of America from a lawsuit challenging discrimination against HIV-positive service members, meaning a greater number of troops will be protected from discharge now and that all service members with HIV will be protected if the suit succeeds.

The MMMA is a plaintiff in what originated as two suits, one challenging the discharge of Air Force members and the other of people serving in the Army. There are certain named plaintiffs in both suits -- the pseudonymous Richard Roe and Victor Voe in the Air Force suit and Nicholas Harrison in the Army suit. The cases are now proceeding as a joint lawsuit.

The Department of Defense had argued that the MMMA, formerly known as OutServe-SLDN, did not have legal standing to sue over the discharge of HIV-positive troops because it had not been directly harmed. But Friday Judge Leonie M. Brinkema, of the U.S. District Court for the Eastern District of Virginia, ruled that the organization did have standing, as it "observed a significant increase in requests for help from individuals seeking legal assistance regarding the military's accession and retention policies, with the most notable increase following the military's announcement of its 'Deploy or Get Out' policy in February 2018," she wrote.

Under that policy, the Defense Department argues that HIV-positive service members should be discharged because they cannot be deployed overseas. But with modern HIV treatment and prevention methods, there is no reason they cannot be deployed, the plaintiffs and their lawyers say.

In the Roe and Voe case, regarding the Air Force, Brinkema last year issued a preliminary injunction blocking the discharge of the named plaintiffs while the case proceeds to trial, and an appeals court upheld the injunction in January. Brinkema's ruling that the MMMA can remain a plaintiff in the case assures that the injunction will protect its members from discharge as well, even if they are not named individually in the suit, according to Lambda Legal, which is representing the plaintiffs.

"This also would means that any success on our claims going forward will unquestionably apply to all Service Members living with HIV and not just named plaintiffs," Lambda notes in an email.