Federal judge temporarily blocks military from forcing out HIV-positive airmen
By RACHEL WEINER | The Washington Post | Published: February 15, 2019
WASHINGTON — A federal judge on Friday blocked the military from forcing out a pair of HIV-positive airmen, saying she had seen no evidence that the disease should prevent them from serving.
"These are the kinds of people that it seems to me the military wants to keep in the service," Judge Leonie Brinkema of the Eastern District of Virginia in suburban Alexandria, Virginia, said in court while issuing an injunction.
Her ruling allows the two Air Force airmen who sued to remain in their posts pending trial; both would otherwise have been terminated in the next few weeks.
"We're absolutely thrilled," said Scott Schoettes, an attorney for the airmen from the LGBT civil rights group Lambda Legal. "We look forward to trial in this matter, where we can show HIV status has no bearing on an airman's ability to serve."
Both active-duty airmen began antiretroviral treatment after testing HIV positive in 2017, and doctors deemed them asymptomatic and physically fit to deploy. Their commanders agreed. But in November, they were told they would be discharged because personnel with HIV are barred from deploying to the Middle East.
Former Defense Secretary Jim Mattis pushed to cut from the military anyone who was not deployable worldwide. Schoettes argued in court that the policy was arbitrary because several other HIV-positive airmen have been retained. But the airmen also maintain that they can serve in the Middle East and manage the virus with a pill a day.
Brinkema said in court she was inclined to agree based on the medical evidence. "We're not talking about a complicated problem," she said. "It's probably less complicated than sleep apnea."
Assistant U.S. Attorney Robert Norway said in court that the military had to consider a "worst-case scenario" in which that medication was lost, after which a person's viral load would rise to detectable levels. Because the two men were younger, he said, they were more likely to be sent to the Middle East than those who were not terminated.
Brinkema said studies found that would take weeks; Norway countered that it could take "as little as nine days." But Brinkema questioned why the government had provided no recent medical research to defend its position, while the plantiffs had.
The two airmen filed suit using the aliases Richard Roe and Victor Voe to avoid the stigma of publicizing their HIV status. Voe, whom Brinkema noted has already deployed twice to the Middle East, came to court Friday in uniform.
"I'm really excited," he said after the hearing. "This is the first time in two years I've had hope."