Military leaders, medical associations, public health groups, and HIV advocates joined three friend-of-the court briefs filed today in support of a federal lawsuit challenging the Pentagon’s discriminatory policies, which prevent service members living with HIV from deploying to most locations outside the United States. These deployment restrictions recently resulted in decisions to discharge a number of Airmen. The briefs being filed today in Roe and Voe v Shanahan before the U.S. Court of Appeals for the Fourth Circuit urge the court to uphold a preliminary injunction preventing the Air Force from discharging service members with HIV.
“These military experts know that policies on military service should be based on standards and up-to-date science,” said Modern Military Association of America (MMAA) Executive Director Andy Blevins. “There have been tremendous advances in the treatment of HIV that enable troops living with HIV to serve without restriction, but Department of Defense policies remain outdated and unjustified. Simply put, in light of modern science, there is no legitimate reason to deny HIV-positive service members the opportunity to deploy or continue to serve in the military.”
“Given the assessment of military experts and the advances in HIV treatment, the Pentagon’s policy of refusing to deploy—and now to discharge—HIV-positive servicemembers who honorably serve our country is utterly discriminatory, outdated and unnecessary,” said Scott Schoettes, HIV Project Director and Counsel at Lambda Legal. “As the world’s largest employer with 2.5 million employees, it is outrageous that the Department of Defense has a harmful and unlawful policy that perpetrates stigma, jeopardizes public health, and dishonors servicemembers.”
In the lawsuit, Lambda Legal and the Modern Military Association of America represent two active duty airmen, identified anonymously as Roe and Voe, who served their country honorably for years until they were discharged in 2018 for being HIV-positive.
The briefs argue that the Pentagon’s categorical exclusion and discharge of HIV-service members is outdated, irrational and discriminatory given the strides in HIV medicine that allow people living with HIV to suppress HIV to undetectable levels, return to health, and lead full lives. The briefs further argue that the Pentagon’s policies lacks scientific support and justification, enact real world harms, and undermine broader public health—debunking erroneous claims by the government.
Three amicus briefs were submitted today: One from military leaders led by former Secretary of the Navy Ray Mabus and former Secretary of the Army Eric Fanning, submitted by Dentons LLP; another from groups representing over 5,000 physicians, scientists and healthcare professionals, led by the HIV Medicine Association and the Infectious Disease Society of America (IDSA) and submitted by Jones Day; and a third brief from health and HIV advocacy organizations AIDS United, the American Public Health Association, and the National Alliance of State & Territorial and Directors (NASTAD), submitted by Kevin Minnick, Brian Breheny along with attorneys at GLBTQ Legal Advocates and Defenders (GLAD).
“It is long past time for the U.S. military to integrate the latest medical science regarding HIV into military policies and to stop discriminating against servicemembers with this medical condition,” said former Secretary of the Navy Ray Mabus. “I urge the Pentagon to update its policies to allow HIV-positive members to serve fully. There is only one qualification required to serve in our military: the ability to do the job. And these individuals can do the job as well as anyone else.”
“Health policies should be based on the best available evidence, and military policy should reflect the current reality of treating and preventing HIV—including the scientific facts that a person with durably suppressed HIV will not transmit the virus, that servicemembers have access to high-quality health care, and that the risk of exposure in military settings is vanishingly low,” said Dr. Judith Feinberg, chair-elect of the HIV Medicine Association.“HIVMA will continue to urge that no one should be excluded from any opportunity, including military service, on the basis of HIV status.”
“As a former Air Force officer, I’m disappointed that the military is reversing course to implement discriminatory policies that will result in the discharge of qualified servicemembers based solely on their HIV status. This new policy contradicts President Trump’s plan to end the HIV epidemic by 2030, shirks the military’s role in this effort, and denies the military’s own history, research, and best practices.” William McColl, Vice President for Policy and Advocacy, AIDS United.
This appeal will be heard in the Fourth Circuit in Richmond, Virginia on September 18. The case is set to go to trial in Alexandria, Virginia on September 9 along, with Harrison v. Shanahan, with attorneys from Lambda Legal, the Modern Military Association of America, Greenberg Traurig and Winston & Strawn representing the plaintiffs.
These lawsuits challenge the Pentagon’s discriminatory deployment policies, which prevent service members living with HIV from deploying to most locations outside the United States. For years, these outdated policies have restricted the opportunities of service members living with HIV, including being used to deny a commission as an officer to enlisted member Nick Harrison. Now the Air Force is using these unjustifiable deployment restrictions to discharge Airmen solely based on HIV status.
The Modern Military Association of America (formerly known as OutServe-SLDN) is also an organizational plaintiff in this case to advance the interests of its members who are living with HIV and serving in the military. Along with Roe and Voe v Shanahan and Harrison v. Shanahan, Lambda Legal and the Modern Military Association of America have brought a third lawsuit, Deese and Doe v. Shanahan, to challenge similar policies that have resulted in the refusal to allow two military academy graduates to commission as officers and begin their military careers.
Read more about the case here: https://www.lambdalegal.org/in-court/cases/roe-and-voe-v-shanahan
Read the amicus briefs here: https://www.lambdalegal.org/in-court/legal-docs/roeandvoe_va_20190726_amicus-brief-aids-united