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Court tells Trump Administration stop trying to remove HIV positive airmen

Trump Administration

This editorial cartoon recreates the classic scene from the film “Return of the Jedi” when Princess Leia strangles Jabba the Hutt. Image: Rob Sheridan.

The Trump Administration must stop trying to discharge two U.S. Air Force soldiers and any other military service members just because they are living with HIV, a federal appeals court ruled today.

The ruling from the U.S. Court of Appeals for the Fourth District in Richmond, Virginia, upholds a lower court decision that also told the Trump Administration to halt efforts to remove two active duty HIV positive airmen.

The Trump Administration was sued and accused of discriminating against the service members and violating the equal protection under the U.S. Constitution.

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Appeals Court ruling

The appeals court opinion, written by Judge Wynn and joined by Judge Diaz and Judge Floyd, criticized the Trump Administration’s rationale for wanting to discharge the servicemen.

The opinion, in part, said that “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.”

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The decision allows the servicemen, identified pseudonymously in the lawsuit as Richard Roe and Victor Voe, to continue serving in the U.S. Air Force as their case makes its way through the courts. The ruling also prevents the Trump Administration from discharging of any other military service members living with HIV.

Airman responds

In a statement, Voe said, “I am 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 affirm the lower court ruling in our favor.

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“No one should be discharged or discriminated against because of HIV when it does not interfere whatsoever with our capacity to serve,” Voe said.

It’s unclear if the Trump Administration will appeal the ruling. If the administration doesn’t appeal, the case will return to a federal court in Alexandria, Virginia, for trial.

A second lawsuit also has been filed against the Trump Administration regarding its treatment of soldiers who are HIV positive.

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HIV policy

The U.S. military bans people with HIV from enlisting, but allows HIV positive people already in the military to stay as long as they are fit for duty and deployable to assignments in foreign military arenas. However, they can’t be deployed outside the United States.

The Trump Administration wanted to amend the policy. The proposed new rule would say that any service member who couldn’t be deployed outside the U.S. for 12 months, meaning all military personnel who are HIV positive, would be discharged. That proposal, which was scheduled to be implemented in February 2019, lead to the lawsuit.

First court ruling

In February, the U.S. District Court for the Eastern District of Virginia granted the plaintiffs’ request for a preliminary injunction halting implementation of the administration’s cruel discharge policies while the lawsuit proceeded. The court also thought that the servicemen had a likelihood of success on their claims at trial.

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“This is the second federal court to find that the Trump administration’s attempt to discharge these individuals is unlikely to pass legal muster,” Scott Schoettes, Counsel and HIV Project Director at Lambda Legal, said in a statement. “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.”

Going to trial

Schoettes said the appeals court ruling clears the way for 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.

The case in question is Roe & Voe v. Esper (formerly Roe & Voe v. Shanahan) that was filed in December 2018 by Lambda Legal and Modern Military Association of America (formerly OutServe-SLDN) with pro-bono co-counsel Winston & Strawn.

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About the author

Phillip Zonkel

Award-winning journalist Phillip Zonkel spent 17 years at Long Beach's Press-Telegram, where he was the first reporter in the paper's history to have a beat covering the city's vibrant LGBTQ. He also created and ran the popular and innovative LGBTQ news blog, Out in the 562.

He won two awards and received a nomination for his reporting on the local LGBTQ community, including a two-part investigation that exposed anti-gay bullying of local high school students and the school districts' failure to implement state mandated protections for LGBTQ students.

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