Judge Blocks Discharge Of HIV-Positive Military Men

A federal court has blocked the Department of Defense from discharging two members of the Air Force simply because they are HIV-positive.

Judge Leonie M. Brinkema of the U.S. District Court for the Eastern District of Virginia issued a preliminary injunction February 15 against the discharge of two airmen while their case proceeds to trial. One of them was scheduled to be discharged within 10 days, noted a press release from Lambda Legal, which is representing the men along with OutServe-SLDN and the law firm of Winston and Strawn.

In issuing the injunction and denying the Defense Department’s motion to dismiss the case after hearing arguments from both sides, Judge Brinkema found that the airmen are likely to succeed in their case.

“These are the kinds of people that it seems to me the military wants to keep in the service,” she said in court, according to The Washington Post.

The Air Force sought to discharge the two men, who have been identified only by pseudonyms, on the basis that they could not be deployed to the Middle East due to their HIV-positive status. However, the “plaintiffs have made a strong preliminary showing that the Air Force’s approach to service members living with HIV is irrational, inconsistent, and at variance with modern science,” she wrote in her ruling, given that the virus can be controlled with medication to the point that it is undetectable — therefore rendering it untransmittable.

Both men, diagnosed in 2017, are on antiretroviral treatment, have no symptoms, and have been pronounced physically fit to deploy by their doctors. Assistant U.S. Attorney Robert Norway, representing the Defense Department, raised the possibility that the men’s medication could be lost while they are overseas and their viral load would again become detectable and the virus transmittable. But Brinkema noted that studies indicate this process would take several weeks.

The airmen had argued their discharge was arbitrary, as other HIV-positive military members had been allowed to remain in the service. The government, however, claimed the two men in question were more likely to be deployed because of their young age. But Judge Brinkema found no barriers to their deployment, and one of the plaintiffs has already served in the Middle East.

“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 press release. “These decisions should be based on science, not stigma, as today’s ruling from the bench demonstrates. Despite President Trump’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. Lambda Legal will keep fighting until these brave and qualified Airmen can serve without limitation.”

“We are thrilled that Judge Brinkema recognized not just that the military’s policies were harming our members who are living and serving with HIV,” added Peter Perkowski, legal and policy director for OutServe-SLDN. “But also indicated that, at least on the evidence before her, the military’s decisions were based on outdated medical science and are categorically denying people living with HIV the same opportunities as their fellow service members.”