Two servicemembers with HIV are suing the Trump administration, arguing that they are being discharged because of their HIV status in an “unconstitutional and improper” fashion.
The lawsuit claims the Pentagon is discriminating against service members with HIV because of a long-standing Department of Defense rule that says they can’t deploy outside the U.S. without a waiver. The Trump administration introduced a new rule in February that said any service member who can’t be deployed outside the United States for more than one continuous year should be separated from service.
Proponents of the policy said it reduced the burden on deployable service members, who were deploying at higher rates due to the need to cover for those service personnel who are not deployable.
“This directive arguably would have applied to almost all Service members living with HIV,” the lawsuit says.
The two service members, named in the suit as “Richard Roe” and “Victor Voe,” argue that they “are being discharged despite the contrary recommendations of their commanding officers and physicians solely because they have tested positive” for HIV — despite adhering to treatment plans and not showing symptoms.
Air Force spokesperson Ann Stefanek pushed back on the allegations.
“The Air Force does not find all Airmen with asymptomatic HIV unfit, and has returned more than 150 such Airmen to duty,” she said in a statement.
“Any Airman with a chronic or progressive illness is referred to the Disability Evaluation System for medical evaluation of fitness for continued service,” Stefanek added. “Each fitness determination is conducted on a case by case basis.”
The lawsuit is another data point in the uneasy relationship between the LGBTQ community and the Pentagon under the Trump administration. The administration has come under fire for its general stances on LGBTQ issues, including its military transgender ban — which the courts have so far blocked from taking effect — and the way it distanced itself from the Defense Department’s annual LGBT Pride Month.
Lambda Legal and OutServe-SLDN filed the lawsuit, Roe and Voe v. Mattis, in the U.S. District Court for the Eastern District of Virginia. The case was filed anonymously to protect the plaintiffs’ medical privacy. As detailed in a Washington Post exclusive, the plaintiffs received notification just days before Thanksgiving, denying their discharge appeals despite compliance with fitness assessments and medical treatment, as well as strong support from commanding officers. Nevertheless, the plaintiffs were found “unfit for continued military service.”
“Anyone willing to put their life on the line to defend our country deserves respect, not discrimination,” said Peter Perkowski, Legal & Policy Director of OutServe-SLDN. “These Airmen are acknowledged leaders and good at their jobs. They have served honorably for many years. They have the support of their commanders and medical personnel, who state that having HIV will not affect their ability to do their jobs. There is simply no justification for this decision.”
The lawsuit challenges the Pentagon’s discriminatory deployment policies, which prevent Service members living with HIV from deploying outside the United States without a waiver. For years, these policies have restricted the opportunities of Service members with HIV. Now these same deployment restrictions are being used to justify separating Service members solely based on HIV status. The “Deploy or Get Out” policy, unveiled by the Trump administration in February 2018, directs the Pentagon to identify service members who cannot be deployed to military posts outside of the United States for more than 12 consecutive months and to separate them from military service. Since current U.S. military policy identifies service members living with HIV as non-deployable, they face immediate discharge under this Trump policy.