LGBTQ advocates are preparing to go to trial against the U.S. government over its policies on HIV-positive service members.
The lawsuit was filed on behalf of two young Air Force members who said they were discharged after being diagnosed with HIV in contravention with military rules that do not call for automatic dismissal due to the medical condition. This is especially true, they say, in light of treatments with commonly available medications that allow the virus to be rendered undetectable and therefore not transmittable.
The service members notched a victory in January when a federal appeals court upheld an injunction that allowed the case to move forward, but Lambda Legal, one of two advocacy groups representing the men, said the battle is just beginning.
"This is a major victory, but there is more fight ahead," Scott Schoettes, counsel and HIV project director at Lambda Legal, said. "Our adversary in this case is the military itself and its current leadership, which seems not to be willing to actually accept or grapple with what these changes in the medicine mean for people living with HIV and their ability to serve."
Schoettes called it a "pretty scary and difficult time for advancing, and even maintaining the rights of LGBT people."
"We've seen this administration, really through regulation, undermine our rights in so many ways," he said. The administration, for instance, instituted a policy last spring that places limitations on military service for transgender individuals.
But Peter Perkowski, Modern Military Association of America's Legal and Policy Director, who is also counsel for the plaintiffs, said the Trump administration can't be blamed for the Pentagon's longstanding policies on service members with HIV. Instead he believes it should be held responsible for promoting a culture of intolerance.
"We can blame the Trump administration for the change in culture that has created a situation where the Air Force no longer feels like it needs to support its service members with HIV," he said. "It's not just trans people and it's not just people living with HIV, it's the entire LGBTQ/ HIV community in the military who are under attack. It comes from the top."
The airmen, identified by the pseudonyms Richard Roe and Victor Voe in the lawsuit, both had years of meritorious service when they were diagnosed as HIV-positive in 2017, according to the December 2018 lawsuit, which called their discharges unconstitutional.
Both men are taking antiretroviral medication, have undetectable HIV, and are healthy and uncompromised in their ability to perform their duties, the suit said.
"Members of the U.S. Armed Forces embody the best of the American spirit. They serve and defend us for love of country and community. Our military treats Service members’ wounds and illnesses, and, when able, they continue to serve," the complaint says. "Service members with HIV, however, do not enjoy the same treatment. Asymptomatic HIV has been diagnosed in a significant number of active-duty Service members."
The Modern Military Association of America estimates that there are about 1,200 active service members living with HIV at the moment. The military prohibits HIV-positive individuals from enlisting or becoming an officer. But service members may not be discharged should they contract HIV solely based on their disease status, the court papers say. The Air Force specifically has an instruction that HIV-positive status "alone is not grounds for medical separation or retirement."
The recent injunction bars the military from discharging the men based on their HIV status while the lawsuit is pending, although the military could request to have that decision appealed. The military argued that the men could pose a risk to fellow service members on the battlefield who could come in contact with their blood, but Schoettes said there's is nearly zero risk of transmitting virus when it is at undetectable levels.
"The medicine has advanced so far in the past 25 years. Not only is it much easier to take care of a person living with HIV medically, but they are perfectly healthy and capable of doing the job," Schoettes said.
Citing potential medical complications, the Air Force said in court papers that it determined that the two airmen would be "unable to reasonably perform" their duties because they were in service fields with high likelihoods of deployment and their conditions would prevent them from deploying to the U.S. Central Command’s area of responsibility, where most airmen are expected to go, according to the Department of Justice.
When reached for comment, the Department of Defense reffered ABC News to the Department of Justice, which did not respond.
Central Command, which governs military operations in the Middle East, North Africa and Central Asia, prohibits personnel with HIV from deploying without a waiver. Voe and Roe, the two plaintiffs in the lawsuit, weren't given an opportunity to request a waiver as they weren't up for deployment at the time of their diagnoses, according to their attorneys. They were being evaluated for fitness for duty when they were diagnosed.
In a unanimous decision issued earlier this month, a three-judge panel on the U.S. Court of Appeals for the 4th Circuit said the Air Force failed to consider “current HIV treatments and transmission risks” when it moved to discharge the young men. The ruling means they will be able to stay in the Air Force while their case against the military proceeds.
The appellate panel blasted the government in its ruling and said the military had relied on "outmoded" information that is "at odds with current science."
"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," the court said in its ruling. "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 ruling was celebrated as a victory, but advocates said the fight is far from over.
Legal experts said there are a few scenarios that could play out. For one, the government could seek a rehearing en banc to have the case heard, not just by the three-judge panel, but by all of the active judges on the Fourth Circuit.
Schoettes said that "doesn't generally happen" when there's been a unanimous opinion by a panel, but it's a scenario they're ready for. The government could also request to have the case heard by the Supreme Court, but legal experts said that's highly unlikely.
"I'm pretty sure we will end up back down at trial where we get to prove our claims and ensure that the service members can continue to serve," Schoettes said.
In addition to contesting the discharges from service, the lawsuit also challenges the Pentagon’s "discriminatory" deployment policies, which can prevent service members living with HIV from deploying to most locations outside the United States, according to Schoettes.
The Modern Military Association of America, one of Lambda Legal's partners in the case, said the lawsuit is one of several filed against the Trump-Pence administration on behalf of LGBTQ military members and veterans, including some who claim they were discriminated against because of their HIV-positive status.
"I think there is still discrimination going on for LGBT people it's just not as overt as it was before. There are pockets of bias. And those are mainly from individuals, but not necessarily from the military itself," Perkowski said.
Over the years, people within the military who are diagnosed with HIV have, for the most part, been allowed to stay up until the Air Force's decision effecting Roe and Voe, according to Perkowski.
"Right now, people with HIV can't enlist in the military. And if they're an enlisted person, they can't commission as an officer regardless of how qualified they are. So you're stuck as an enlisted person and that obviously affects your ability to get awards and recognitions and promote up the ranks," Perkowski said.
"We've seen pilots who were are diagnosed with HIV get grounded as well as doctors and medical practitioners, including mental health practitioners, who were removed from their healthcare jobs after being diagnosed," he added. "So I think a case like this would affect those people very significantly."