HIV Service Members Military Discharge Injunction Overview:
- Who: A federal judge in Virginia has blocked the Department of Defense (DOD) from being able to discharge HIV-positive service members who are asymptomatic.
- Why: The DOD has policies in place that keep HIV-positive individuals from being able to enlist and cause roadblocks for service members who are diagnosed with HIV while in the military.
- Where: The case is being litigated in Virginia federal court.
The Department of Defense (DOD) has been blocked from discharging HIV-positive service members who are asymptomatic with undetectable viral loads, according to an order by a Virginia federal judge.
The permanent injunction ruling comes after two HIV-positive airmen claimed in a class action lawsuit that the DOD’s policy of presenting restrictions and challenges for HIV-positive service members and those trying to enlist is unconstitutional, Law360 reports.
In addition to not allowing HIV-positive individuals to enlist, the DOD won’t let them be commissioned as officers and places geographical restrictions based on access to medical care, according to the class action lawsuit.
The two airmen, who are being called Richard Roe and Victor Voe, claim the DOD also has a policy that service members who can’t be outside of the United States for at least 12 consecutive months must be discharged, a standard the Roe and Voe argue HIV-positive individuals can’t meet.
Roe and Voe were going to be discharged from the Air Force due to their status as HIV-positive before the Virginal federal judge blocked the decision in February 2019, Law360 reports.
Air Force Worried Airmen’s Health Could Suddenly Deteriorate
The Air Force had decided to discharge Roe and Voe due to concerns that their health could deteriorate suddenly, preventing them from being able to be deployed outside of the United States.
At the time, the judge called the DOD’s policies toward HIV-positive individuals “irrational,” “flawed” and “inconsistently applied,” Law360 reports.
OutServe-SLDN, an LGBT service member advocacy group, also filed a complaint alongside Roe and Voe, claiming their pending discharge was unconstitutional and violated the Administrative Procedure Act.
Roe and Voe have maintained that their viral loads for HIV are effectively undetectable on account of the modern antiretroviral drugs they take, and that their HIV status has no effect on their ability to perform their military duties, Law360 reports.
In January, a separate class action lawsuit targeted the DOD over claims that the US Navy’s mandatory COVID-19 vaccine policy is unconstitutional.
Have you been turned away from serving in the military on account of a medical condition? Let us know in the comments!
The plaintiffs are represented by Geoffrey P. Eaton, Lauren Gailey and John W.H. Harding of Winston & Strawn LLP.
The HIV Service Members Class Action Lawsuit is Roe, et al. v. Austin, et al., Case No. 1:18-cv-01565, in the U.S. District Court for the Eastern District of Virginia.
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