RICHMOND, Va. (CN) – It took a few years for Victor Voe to realize how important his job in the Air Force really was. While he’d been serving maintenance duty on bases for years, with multiple tours overseas taking him to the Korean Peninsula and the Middle East, it wasn’t until he had the chance to serve in the Honor Guard that he realized what it meant to serve his country.
“Being able to pass off the flag to a loved one, after that person had died in service, it was a very powerful moment,” he said in a phone interview about fulfilling his unique and hard-earned duty. “You could see what it meant to the family and it was something I was very grateful to be a part of.”
So when he found out about a year later he was HIV-positive and was going to be discharged from the Air Force because of his status, he broke down in tears.
“Not only did my personal life just get flipped upside down, now my military life is getting impacted,” he said.
Voe, a pseudonym used by the airman, is one of several currently serving members of the U.S. Air Force facing discharge because of their HIV status thanks to recent changes in agency policy.
After filing a lawsuit asserting violations of their due process rights, as well as violations of the Administrative Procedures Act, a federal judge in Virginia halted their discharge and put the policy on hold.
And while the unnamed plaintiffs spent their Wednesday morning back at work serving their country, a lawyer from the Justice Department argued before the Fourth Circuit in Richmond, Virginia, that they should be kicked out.
“[The chance of] transmission is low, but not non-existent. Even in a civilian context, it’s not rational to have a requirement that everyone who could be exposed must have prophylactic treatment,” argued Lewis Yelin, senior counsel with the Justice Department’s Civil Division, saying the policy reflected concerns such as blood splatter leading to infection on the battlefield.
If the government had to ensure access to drugs like pre-exposure prophylaxis, it would be an undo burden on the nation’s military, Yelin said.
But U.S. Circuit Judge James Wynn, a Barack Obama appointee, pushed back.
“Like food?” the judge asked, suggesting the military’s ability to distribute other much needed supplies would not be burdened by such an addition.
But Yelin scoffed at the comparison, noting the military has the ability to handle some burdens, but also determines which burdens are irrational.
Wynn then compared the situation to service members with diabetes or high blood pressure.
“It can reduce one risk without taking on another,” Yelin said before stressing HIV’s ability to transfer through blood contact, which is not the case for the other two illnesses.
U.S. Circuit Judge Albert Diaz, another Obama appointee, was more interested in the nature of the policy and how it was enacted. Yelin explained there had long been a medical review process for those who tested HIV-positive while enlisted, which examined not only the illness but how it would impact their ability to deploy.
Diaz wondered about the “predictability” of such an assessment.
Yelin said it came down to chronic illness, instead of situations where the illness was being successfully treated.
Diaz also asked if the Air Force’s policy lined up with that of other branches. Yelin said the Navy has a more lax policy for HIV-positive deployment as long as the service member was stationed on a boat with a full medical compliment.
But Geoffrey Eaton with the D.C.-based Winston and Strawn, who argued on behalf of the service members, stressed Wednesday’s arguments, which aimed only to address the preliminary injunction, were more about maintaining the status quo. He said the Air Force’s policy for the last 20 years had allowed HIV-positive airmen to serve, but it was only in the last two years that things began to change.
He also said the argument made by the DOJ around HIV transmission was “divorced from medical reality.” He cited a 2012 study which examined HIV transmission in battle-deployed troops from 2001 to 2007. The study found only 48 new cases of HIV among the 1.3 million troops and all of the cases involved sexual contact.
“The odds of transmission in a combat zone are theoretical at best,” he argued.
The Fourth Circuit challenge is not the only case looking to undo HIV-related discharges from the military. D.C. Army National Guard Sergeant Nick Harrison faced discharge for his HIV-positive status earlier this year and his challenge is currently working its way through the Eastern District of Virginia.
Harrison was in Richmond for Wednesday’s hearing and sympathized with Voe and other service members who are facing discharge.
While Voe has remained anonymous after facing stigma for his sexuality and status, Harrison said he’s proud to be the face for the issue. His position with the National Guard has allowed him to dodge the negativity Voe and others have faced, but he said he receives weekly phone calls from other HIV-positive service members who are unsure of their future.
“It’s a very real fear out there,” he said. “There’s a lot of confusion and people who are just trying to deal with the stigma alone, now they have to deal with this uncertainty in their career.”
Meanwhile, Voe, who spoke with Courthouse News on his lunch break while still serving on base, just wants to fulfill the promise he made to his country when he joined the Air Force eight years ago.
“Being in the military is bigger than myself and the people who don’t want me there,” he said. “I want to be able to keep serving my country and honor those who died in the past. I want to be of service.”
U.S. Circuit Judge Henry Floyd, another Obama appointee, rounded out Wednesday’s three-judge panel. The judges did not signal when they intend to rule.
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