Calling the U.S. Air Force’s justifications for discharging military personnel living with HIV “outmoded and at odds with current science,” the U.S. Court of Appeals for the Fourth Circuit last week upheld a lower court ruling in Roe and Voe v. Esper that allows two HIV-positive members of the Air Force, identified by pseudonyms Richard Roe and Victor Voe, to continue serving. The ruling also prevents, for now, the discharge of any other airmen based on their HIV status.
Last week’s ruling affirmed a ruling by the U.S. District Court for the Eastern District of Virginia, which last February granted the plaintiffs’ request for a preliminary injunction to halt their discharge. In issuing the preliminary injunction, saying that the airmen could not be kicked out of the military while the case is being tried, the district court said not only were the plaintiffs likely to succeed on their claims that they should be retained, they were also likely to succeed on their claims that they should be permitted to deploy.
The appeals court’s 46-page opinion concludes:
“These servicemembers, like other HIV-positive individuals with undetectable viral loads, have no symptoms of HIV. They take daily medication—usually one pill, for some people two—and need a regular, but routine blood test. They cannot transmit the virus through normal daily activities, and their risk of transmitting the virus through battlefield exposure, if the virus can be transmitted at all, is extremely low. Although transmission through blood transfusion is possible, these servicemembers have been ordered not to donate blood. But the Government did not consider these realities when discharging these servicemembers, instead relying on assumptions and categorical determinations. As a result, the Air Force denied these servicemembers an individualized determination of their fitness for military service.”
The case was filed in December 2018 by Lambda Legal and Modern Military Association of America (MMAA, formerly OutServe-SLDN) assisted by pro-bono co-counsel Winston and Strawn.
The ruling is a small victory for the servicemembers, in one sense, because it preserves the status quo, according to MMAA legal and policy director Peter Perkowski. “But it’s also huge, because the appellate court recognizes changes in HIV science and law that also need to be recognized by the government,” he said.
The Air Force has a zero-risk policy and has been using “sky is falling scenarios” to justify the policy, Perkowski said. “They’re saying [servicemembers with HIV] will lose their pills, and then their viral load will rebound. But you can get replacement meds on the next plane.”
“The U.S. military is the last employer who can still discriminate against people with HIV,” Perkowski added.
In an email, Air Force spokesperson Lynn Kirby said, “We have received and respect the court’s ruling and are committed to treating all airmen fairly under the law. However, due to ongoing litigation, we cannot provide further comment on this particular case.”
Roe and Voe v. Esper (formerly Roe and Voe v. Shanahan) is one of three cases involving discriminatory discharge policy targeting servicemembers living with HIV. Harrison v. Esper, challenging the Army’s refusal to commission an enlisted soldier as an officer based on his HIV status, is set to proceed to trial alongside Roe and Voe v. Esper in the Eastern District of Virginia, likely in the spring. The same attorneys are working on both cases.
A third companion lawsuit, Deese and Doe v. Shanahan, involves two servicemembers who graduated from the Air Force and Navy academies but were refused commissions after they became HIV positive.
Fighting the “Deploy or Get Out” Policy
Richard Roe told TheBody that last week’s decision was a big win, but he’s still prepared for more legal hurdles.
Roe joined the Air Force in June 2012 and learned of his status in October 2017, when the Air Force tested him for HIV. That set the process of his dismissal in motion. First, there were medical safeguards: Roe was given the order to inform all past and future sex partners, then given a week-long training about viral load and CD4 count. Then he was directed into disability evaluation, and because the main issue for the military was his HIV status, not his health generally, he was put on a conveyor belt leading to the exit, according to Roe.
“Even though my commanding officer and doctors wanted me to stay in, the informal board recommended discharge, then a formal board of three members recommended discharge,” Roe said. “It was very pro forma. I got to ask one question. They said I could not deploy. However, the regulations say there is a waiver process that allows [a person with HIV to] deploy. The panel said I wouldn’t get it.”
“This is the ‘deploy or get out’ policy of Trump,” Roe continued. “In decisions, they say it is only because we can’t deploy, and I can’t deploy because I would be a burden on the others because they would have to deploy more often. In more than seven years, I have never deployed once.”
The “deploy or get out” policy was technically on the books for years, but not put into action until 2017, under the Trump administration.
Roe was given separation orders in 2018 and was supposed to be kicked out by March 2019, but the preliminary injunction prevented that. Roe works in logistics, and he’s doing what he trained to do. “Deployment,” in military terms, contrary to public perception, isn’t necessarily into a hot war zone, and isn’t necessarily in a combat role.
“I have a desk job,” Roe said. “I stare at computer monitors. I would do the same thing in deployment. Nothing would prevent me from doing that.”
Not deploying can be a career killer for servicemembers, according to Scott Schoettes, HIV Project director at Lambda Legal. “We are arguing that the Air Force violated their own policy. That is, they say it is not about HIV, that they are releasing the men because they can’t deploy. But they can’t deploy because they have HIV, according to the policy, so it is circular logic.”
Schoettes did praise the way the military handles medical care, even though he says their policies on HIV are “stuck in the 1980s.”
“They test for HIV every two years, and this is good—we want them to test people. Because of access to care, 99.9% of people with HIV in the military are undetectable. But the military still thinks providing care is too difficult when deployed, though they are just taking one pill.”
Schoettes estimates that 1,200 people in the military have HIV. “We don’t know how many have chosen not to enlist because of the barriers, though. Even back in the early 1990s, before there was effective treatment, [HIV-positive servicemembers] were given the option of leaving the military, but were not automatically kicked out.”
Schoettes and Perkowski feel good about the prospects of all three cases, unless they end up in front of the conservative-leaning U.S. Supreme Court, which, they say, is a possibility.
“The government has shown success in issues like this by going to the Supreme Court,” Perkowski said, pointing out the Trump-Pence ban on transgender military personnel, which last year the Supreme Court allowed to take effect.
Roe continues his work as usual while he waits to learn about his professional fate. “My coworkers and bosses know about me and are supportive. Everyone I’ve talked to tells me, “we don’t understand this policy.”