RICHMOND, Va. — On Friday, the U.S. Court of Appeals for the Fourth Circuit upheld a lower court ruling in Roe & Voe v. Esper that halted efforts by the Trump administration to discharge members of the Air Force because they are living with HIV.
The decision means the two airmen can continue to serve and also means other HIV-positive servicemembers will not be discharged.
According to a press release from Lambda Legal, the court ruled that the government’s justifications “fail to account for current medical literature and expert opinion about current HIV treatment and transmission risks.” The opinion, written by Judge Wynn and joined by Judge Diaz and Judge Floyd, stated:
“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. 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. Court of Appeals for the Fourth Circuit
“This is the second federal court to find that the Trump administration’s attempt to discharge these individuals is unlikely to pass legal muster,” said Scott Schoettes, counsel and HIV Project Director at Lambda Legal. “At the root of these discharge decisions and other restrictions on the service of people living with HIV are completely outdated and bigoted ideas about HIV.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. We are confident Roe and Voe will succeed because the Government is unable to offer a reasonable justification for their discriminatory treatment of servicemembers living with HIV.”
The airmen are using the pseudonyms Richard Roe and Victor Voe for the lawsuit.
“I am extremely relieved to learn that I can continue to serve this country like any other servicemember. Serving in the U.S. military has been the greatest honor of my life and I’m thrilled to see this court affirm 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.” said Voe.
In February 2019, the U.S. District Court for the Eastern District of Virginia granted the preliminary injunction against the U.S. Department of Defense and the Secretary of the Air Force to halt discharge proceedings against active duty HIV-positive airmen. In granting the injunction, the district court ruled the plaintiffs were likely to succeed on their claims that the military policies preventing the deployment of service members with HIV are outdated and irrational.
“I joined this lawsuit because I feared I would be discharged from the military but also because there is still so much stigma and so many misconceptions about what it is to live with HIV today,” said Roe. “I am very pleased the Court decision will allow us to serve the country we lov while we press our claims before the district court.”
The lawsuit was filed in December 2018 by Lambda Legal and Modern Military Association of America (MMAA, formerly OutServe-SLDN) with pro-bono co-counsel Winston & Strawn.