Fit for Service
Injunction Upheld Preventing the Trump Administration’s Discharge of HIV-Positive Airmen
by Hank Trout

On January 10, 2020, the U.S. Court of Appeals for the Fourth Circuit upheld a lower court’s injunction preventing the Trump Administration from discharging members of the U.S. Air Force because they are living with HIV.

In the case Roe & Voe v. Esper, filed in December 2018 by Lambda Legal and Modern Military Association of America (MMAA, formerly OutServe-SLDN) with pro-bono co-counsel Winston & Strawn, two plaintiffs, identified pseudonymously as Richard Roe and Victor Voe, challenged the efforts of the Trump Administration’s to discharge HIV-positive members of the Air Force based solely on their serostatus. In February 2019, the U.S. District Court for the Eastern District of Virginia granted the plaintiffs’ request for a preliminary injunction halting the administration’s discriminatory discharge policies while the lawsuit proceeded. The District Court found that the Airmen had a likelihood of success on their claims at trial. The Fourth Circuit Court of Appeals affirmed that ruling. The Court also ruled the plaintiffs were likely to succeed on their claims that they should be permitted to deploy as well.

The ruling enables the two plaintiff Airmen to continue serving while the case works its way further through the Court system.

In its ruling, written by Judge Wynn and joined by Judge Diaz and Judge Floyd, the Court stated that “[a] ban on deployment may have been justified at a time when HIV treatment was less effective at managing the virus and reducing transmission risks. But 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.” The court ruled that the Administration’s attempts to justify the discharges of HIV-positive Airmen “fail to account for current medical literature and expert opinion about current HIV treatment and transmission risks.”

“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 press release. “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the root of these discharge decisions and other restrictions on the service of people living with HIV are completely outdated and bigoted ideas about HIV. Today’s ruling clears the way for us 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.”

MMAA Legal and Policy Director Peter Perkowski added, “In light of major advancements in medical treatments, there is no legitimate reason these servicemembers cannot or should not be able to continue to serve their country. It’s past time for the Department of Defense’s outdated policies to catch up with modern science.”

The affirmation of the preliminary injunction came after the Fourth Circuit Court of Appeals heard oral arguments from both sides on September 18, 2019, with Geoffrey Eaton, a partner at Winston & Strawn LLP, arguing on behalf of the plaintiffs. The Fourth Circuit judges questioned the Department of Justice lawyers representing the Trump Administration for clearer answers regarding why the Department of Defense believes its policies are justified. The Court concluded, “The Government’s explanations for why it has imposed an effective ban on deploying HIV-positive servicemembers to CENTCOM’s area of responsibility are at odds with modern science… [T]he Government did not consider [scientific 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.”

Plaintiff Richard Roe stated in a press release, “I joined this lawsuit because I feared I would be discharged from the military, but also because of the lingering stigma and many misconceptions about what it is to live with HIV today. I am very pleased the 4th Circuit decision will allow us to continue serving the country we love.”

On August 5, 2019, former Secretary of the Navy Ray Mabus wrote an op-ed for The Washington Post arguing that the Pentagon needed to update its policies regarding HIV-positive service members. “The current deployment restrictions,” he said, “lack scientific support, perpetuate HIV-related stigma and saddle these members with rejection and discrimination.”

A companion case challenging the Army’s refusal to commission an enlisted soldier as a JAG officer based on his HIV status, Harrison v. Esper, is set to proceed to trial in the Eastern District of Virginia, alongside Roe & Voe v. Esper, probably in the spring. The same attorneys are working on both cases.

Army Lieutenant Colonel Ken Pinkela told A&U in an exclusive interview published in October 2016 that, despite his impeccable twenty-six-year record in the U.S. Army, during which he completed tours of duty in Desert Storm, Desert Shield, Bosnia, and Kosovo, and served as the Army’s legislative liaison to the U.S. House of Representatives, he was wrongly convicted in an HIV criminalization case in which the only witness has recanted his claim of unprotected sex with him. He is still seeking justice, fighting for acquittal for a crime he insists he didn’t commit. “They went after me because I was gay and I was HIV-positive,” he told A&U. As a result of the conviction, Ken said, “I lost everything. I was dismissed from the Army. They literally erased me like I never served a day in my life.” Pinkela——despite having won a Bronze Star, a Meritorious Service Medal, and a Combat Infantry Badge among other honors——now has no pension and no VA benefits. “I don’t even get a flag on my coffin when I die.”

Asked about the Fourth Circuit Court’s decision upholding the injunction preventing the Trump Administration from discharging Airmen living with HIV, Ken said, “I couldn’t be more proud of and happy for [the plaintiffs]. The all-volunteer force got a real boost from the decision out of the Fourth Circuit recognizing the reality of living with HIV. Service members living with HIV cannot be singled out based on fear and stigma. We are fully mission capable and fit for duty, and must be treated as such. I have real hope that this decision will also have a welcome ripple effect in the continued fight to end the wrongful prosecution and criminalization of PLHIV in the [other] Armed Forces as well.”

Hank Trout, Senior Editor, edited Drummer, Malebox, and Folsom magazines in the early 1980s. A long-term survivor of HIV/AIDS (diagnosed in 1989), he is a forty-year resident of San Francisco, where he lives with his husband Rick. Follow him on Twitter @HankTroutWriter.