Federal judge temporarily blocks military from discharging HIV-positive airmen

Federal judge temporarily blocks military from discharging HIV-positive airmen
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A federal judge ordered the Department of Defense to halt the pending discharge proceedings against two HIV-positive members of the U.S. Air Force, LGBTQ legal group Lambda Legal said Friday.

U.S. District Judge Leonie Brinkema approved a preliminary injunction because "the plaintiffs were likely to succeed in preventing their discharge through the lawsuit," according to a statement from Lambda Legal.

Brinkema rejected the Trump administration’s motion to dismiss, allowing the airmen to continue serving until their case goes to trial.

“This is a major victory in our fight to ensure everyone living with HIV can serve their country without discrimination,” Scott Schoettes, counsel and HIV Project Director at Lambda Legal, said in a statement.


“These decisions should be based on science, not stigma, as today’s ruling from the bench demonstrates. Despite President TrumpDonald TrumpVirginia GOP gubernatorial nominee acknowledges Biden was 'legitimately' elected Biden meets with DACA recipients on immigration reform Overnight Health Care: States begin lifting mask mandates after new CDC guidance | Walmart, Trader Joe's will no longer require customers to wear masks | CDC finds Pfizer, Moderna vaccines 94 percent effective in health workers MORE’s promise to improve the lives of people living with HIV at the State of the Union this month, his Administration continues to defend these policies and others discriminating against people most impacted by HIV," Schoettes continued.

The two airmen, who filed lawsuit in December under the pseudonyms “Richard Roe” and “Victor Voe,” were given discharge papers just days before Thanksgiving. The papers said they had been found “unfit for continued military service” despite complying with medical treatment and physical fitness requirements. 

The two allege in their lawsuit that the Pentagon is discriminating against service members with HIV via a long-standing DOD rule that says they can’t deploy outside of the U.S. without a waiver.

The Trump administration, however, introduced a rule in February 2018 declaring that any service member who can’t be deployed outside the U.S. for more than one continuous year should be separated.

Supporters of the policy have argued that it helps alleviate the burden on troops who are being redeployed at a higher rate. Critics note that the policy was implemented shortly after Trump announced his plans to ban transgender people from the military. 

Lamba Legal said the Trump administration’s rule, called the “deploy or get out,” is being used to justify discharging airmen based on their HIV status.

"This directive arguably would have applied to almost all service members living with HIV," the lawsuit states.

The Hill has reached out to the Air Force for comment. 

Prior to the policy, the lawsuit states that at least 13 airmen living with HIV were allowed to serve overseas.

Lambda Legal and Outserve-SLDN filed lawsuits on behalf of Sgt. Nick Harrison, an Army National Guard sergeant seeking to become a judge advocate general and an unnamed Air Force veteran last May.

And in August 2018, the two groups also filed a lawsuit on behalf of Kevin Deese and an anonymous client whom the Navy and Air Force refused to commission as officers based on their HIV-positive status after they graduated from their respective military academies.

Trump announced at his State of the Union address that he had set a 10-year timeline to eradicate AIDS in the United States.

"My budget will ask Democrats and Republicans to make the needed commitment to eliminate the HIV epidemic in the United States within 10 years," Trump said. “Together, we will defeat AIDS in America.”

The president has not appointed a director of the Office of National AIDS Policy, which was formed under former President Clinton.

The administration fired members of the President’s Advisory Council on HIV/AIDS in late 2017, and new co-chairs weren’t sworn in until last month. The rest of the council is still vacant.