Fourth Circuit Blocks Discharge of HIV-Positive Airmen

RICHMOND, Va. (CN) – The Fourth Circuit on Friday upheld a ruling that blocked the Trump administration’s attempt to discharge Air Force members because of their HIV-positive status.

Lambda Legal, the Modern Military Association of America and attorneys with Winston & Strawn sued the Defense Department and several officials in December 2018 on behalf of two U.S. airmen who were told they would be forced out of the military for testing positive for HIV.

(U.S. Air Force photo by Tech. Sgt. Jonathan Lovelady)

Last February, a federal judge in Virginia granted their request for a preliminary injunction and halted the Trump administration’s discharge policies while the lawsuit proceeded.

After hearing oral arguments in September, the Richmond-based Fourth Circuit ruled Friday that the government’s justifications “fail to account for current medical literature and expert opinion about current HIV treatment and transmission risks.”

“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,” U.S. Circuit Judge James Wynn Jr., a Barack Obama appointee, wrote for the unanimous three-member panel.

The judges agreed with the lower court that the plaintiffs’ claims of discrimination and their requests remain active-duty members had a likelihood of success moving forward.

“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,” the 46-page ruling states.

Wynn was joined on the panel by two other Obama appointees, U.S. Circuit Judges Albert Diaz and Henry Floyd.

Attorneys for the airmen – who are identified as in court papers as Richard Roe and Victor Voe for medical privacy purposes – said HIV diagnoses do not have the same ramifications today that they did when the virus first entered the public conscience.

Scott Schoettes, counsel and HIV project director at Lambda Legal, said in a statement that the administration’s discharge policy is based on “outdated and bigoted ideas about HIV.”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,” he said.

Roe said he joined the lawsuit to prevent his discharge and combat the stigma associated with HIV.

“I am very pleased the Fourth Circuit decision will allow us to continue serving the country we love,” he said in a statement.

Voe said he is “extremely relieved to learn that I can continue to serve this country like any other service member.”

“Serving in the U.S. military has been the greatest honor of my life and I’m thrilled to see this court affirmed 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,” he said.

For most people living with HIV, according to the airmen’s lawsuit, medication renders the diagnosis inconsequential to daily life, and those who adhere to these medication regimens have few to no symptoms or significant effects on their immune systems —making traces of the virus unable to be transmitted to others.

According to the Centers for Disease Control and Prevention, for most sexual activities, the per-exposure risk of transmitting untreated HIV is between 0% and 0.11%. The agency says nonsexual exposures to untreated HIV—like biting, spitting and throwing bodily fluids— is “technically possible but unlikely and not well documented.”

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